Filed: May 08, 2020
Latest Update: May 11, 2020
Summary: U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS _ No. ACM 39512 _ UNITED STATES Appellee v. Faraz A. WASSAN Airman (E-2), U.S. Air Force, Appellant _ Appeal from the United States Air Force Trial Judiciary Decided 8 May 2020 _ Military Judge: L. Martin Powell. Approved sentence: Dishonorable discharge, confinement for 11 months, forfeiture of all pay and allowances, reduction to E-1, and a reprimand. Sentence adjudged 20 April 2018 by GCM convened at Eglin Air Force Base, Florida. For App
Summary: U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS _ No. ACM 39512 _ UNITED STATES Appellee v. Faraz A. WASSAN Airman (E-2), U.S. Air Force, Appellant _ Appeal from the United States Air Force Trial Judiciary Decided 8 May 2020 _ Military Judge: L. Martin Powell. Approved sentence: Dishonorable discharge, confinement for 11 months, forfeiture of all pay and allowances, reduction to E-1, and a reprimand. Sentence adjudged 20 April 2018 by GCM convened at Eglin Air Force Base, Florida. For Appe..
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U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39512
________________________
UNITED STATES
Appellee
v.
Faraz A. WASSAN
Airman (E-2), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 8 May 2020
________________________
Military Judge: L. Martin Powell.
Approved sentence: Dishonorable discharge, confinement for 11 months,
forfeiture of all pay and allowances, reduction to E-1, and a reprimand.
Sentence adjudged 20 April 2018 by GCM convened at Eglin Air Force
Base, Florida.
For Appellant: Major Rodrigo M. Caruço, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Zach-
ary T. West, USAF; Captain Peter F. Kellett, USAF; Mary Ellen Payne,
Esquire; Justin A. Miller (legal intern). 1
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Senior Judge MINK delivered the opinion of the court, in which Judge
LEWIS and Judge D. JOHNSON 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This is an unpublished opinion and, as such, does not serve as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 at all times supervised by an attorney admitted to practice before this
court.
United States v. Wassan, No. ACM 39512
MINK, Senior Judge:
A general court-martial comprised of officer members convicted Appellant,
contrary to his pleas, of two specifications of attempted sexual assault of a child
and one specification of attempted sexual abuse of a child on divers occasions,
each in violation of Article 80, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 880. 2 The court-martial sentenced Appellant to a dishonorable dis-
charge, confinement for 11 months, forfeiture of all pay and allowances, reduc-
tion to the grade of E-1, and a reprimand. The convening authority approved
the sentence as adjudged.
Appellant raises seven issues on appeal: (1) whether his conviction is fac-
tually and legally sufficient in light of the entrapment defense; (2) whether the
military judge erred in denying the Defense’s challenge to Major (Maj) JS for
cause; (3) whether the military judge erred in precluding the members from
considering evidence of the potential impact of Appellant’s conviction on his
citizenship status; (4) whether the military judge erred in denying the defense
motion to compel the production of an expert consultant in forensic linguistics;
(5) whether, as applied to Appellant, 10 U.S.C. § 856(b), violates the Eighth
Amendment 3 prohibition against cruel and unusual punishment; (6) whether
the accumulation of errors during his trial amount to cumulative error; and (7)
whether Appellant is entitled to relief for post-trial delay. We find no prejudi-
cial error and affirm the findings and sentence.
I. BACKGROUND
In May 2017, Appellant, then an 18-year-old male Airman assigned to
Eglin Air Force Base (AFB), Florida, posted a personal advertisement on the
Casual Encounters section of Craigslist, 4 entitled “Looking for some fun – m4t
(Fort Walton Beach).” 5,6 The advertisement read:
2Unless otherwise noted, all references in this opinion to the Uniform Code of Military
Justice (UCMJ), Rules for Courts-Martial (R.C.M.), and Military Rules of Evidence are
to the Manual for Courts-Martial, United States (2016 ed.).
3 U.S. CONST. amend. VIII.
4 Craigslist is an internet website that hosts classified advertisements and discussion
forums.
5Testimony during Appellant’s court-martial described the acronym “m4t” as referring
to “man for transsexual or transgender.”
6This opinion quotes an on-line advertisement, emails and text messages as they ap-
pear in the record of trial and without correction.
2
United States v. Wassan, No. ACM 39512
Heyy I am 19 and I am military and I am just looking to meet
and have some fun. I am slim/ 6’1 I am up for anything tonight.
Email me for pics and send yours with it as well
On 16 June 2017, an individual purporting to be “Molly Turner,” a 14-year-
old girl living on base with her mother, responded to the advertisement and
began an email conversation with Appellant. Unbeknownst to Appellant,
“Molly” was in fact Special Agent (SA) MB, an investigator with the Air Force
Office of Special Investigations (AFOSI), pretending to be “Molly” as part of an
undercover law enforcement operation designed to catch sexual predators tar-
geting children. After the exchange of several emails, Appellant and “Molly”
switched from communicating by email to Kik, a cellphone application, and
began a conversation through text messaging. During this period, Appellant
repeatedly asked “Molly” to send him photographs of herself and to meet him
in person. During one of their conversations later in June, “Molly” asked Ap-
pellant, “What is m4t[?] is it men 4 teen[?]” Appellant responded, “Yes it is.
But some places call it something else too.” Their electronic text communica-
tions continued for approximately one month, during which Appellant used a
variety of graphic terms and explicit language to describe the sexual acts he
wanted to perform on “Molly” and have her perform on him. Appellant included
in his messages graphic descriptions of how he wanted to and would engage in
oral and vaginal sexual intercourse with “Molly.”
On 12 July 2017, Appellant, who had turned 19 years old in June, arranged
to meet “Molly” at a location on Eglin AFB. Appellant drove to the agreed upon
location where he was then apprehended by AFOSI agents.
II. DISCUSSION
A. Legal and Factual Sufficiency and Entrapment
Appellant asserts that the evidence for the three offenses of which he was
convicted was legally and factually insufficient to overcome the defense of en-
trapment raised at trial. Appellant points both to inducement by the Govern-
ment, which took the form of “pursuing him” and “pressure” from “Molly,” and
to Appellant’s lack of predisposition, evidenced by the fact that he did not re-
spond to an advertisement posted by law enforcement, that he did not send
“Molly” any sexually explicit photographs, and that he did not bring any sexual
paraphernalia when he went to meet “Molly.” We are not persuaded that Ap-
pellant was entrapped and find his convictions both legally and factually suf-
ficient.
1. Additional Background
Immediately after “Molly” responded to Appellant’s Craigslist advertise-
ment on 16 June 2017, Appellant asked her to send him a picture of herself,
3
United States v. Wassan, No. ACM 39512
and “Molly” responded by telling him that she would be turning 15 years old
“in a few months.” Appellant responded, “Ohh okay. Send me a pic of you” and
asked, “What are you looking for?” “Molly” replied, “Just looking for some1 to
teach me and fun ;)” to which Appellant said “Alright I will. Just send me a
pic.”
Appellant and “Molly” then switched to communicating on Kik and Appel-
lant persisted with his request for “Molly” to send him her picture. In reply,
“Molly” told Appellant that she lived on the base in “new housing” with her
mother. After “Molly” sent Appellant a photograph that purported to be her
entire face showing her smiling with braces on her teeth, Appellant sent
“Molly” a photograph of himself and immediately began requesting to meet
her. Appellant then asked “Molly” to send him another picture and began to
try to persuade “Molly” to meet him for just “15 to 20” minutes initially to “just
talk.” As “Molly” continued to resist meeting Appellant, their discussion shifted
to more general topics such as things they each liked to do, such as going to the
beach and playing soccer. After “Molly” noted that Appellant mentioned that
he liked to “party,” the following exchange occurred:
[Appellant]: Yeah I do
[“Molly”]: Awesome . . . So like wht kind of stuff do u think u can
teach me [smile emoji]
[Appellant]: Anything you want. What do you wanna learn
[“Molly”]: Ugh I hav like no experience besides sum kissing and
touching . . . Wht do u like
[Appellant]: That’s fine I can teach you whatever you want. We
will see in person. And I like anything. I will teach you things
that you will love
[“Molly”]: Oh ya? . . . I’d rlly like to kno sum
[Appellant]: Mmmm I will show you in person
[“Molly”]: K
The following day, on 18 June 2017, after some general conversation about
their activities in which Appellant described going out to eat with some friends
and “Molly” stated that she was “Sittin around the house today is cleaning day
lol,” Appellant again requested to meet “Molly”:
[Appellant]: Mmm so can we meet tomorrow
[“Molly”]: I’d rlly like to kno what u can teach me first . . . So I
can b prepared
[Appellant]: Whatever you want and abutting . . . Anything*
4
United States v. Wassan, No. ACM 39512
[“Molly”]: What’s ur fav thing?
[Appellant]: I like making out and doing oral
[“Molly”]: Thts hot lol . . . Wht is oral?
[Appellant]: Eating a girls p***y and sucking d**k. Oral sex
[“Molly”]: [smile emoji] . . . R u a good teacher?
[Appellant]: Yes I can be
[“Molly’]: Why else do u like?
[Appellant]: A lot of things . . . Can we meet tomorrow
[“Molly”]: Def sometime this week . . . I hav a question tho
[Appellant]: What is it
[“Molly”]: Will u wear protection?
[Appellant]: Yes I wear protection
As Appellant and “Molly” conversed by text message over the next few days,
their conversation mostly focused on setting up a time to meet. On 21 June
2017, “Molly” told Appellant that they could meet the next day because her
mother would be at work, so they eventually agreed to meet at 6:00 p.m. on 22
June 2017. However, that meeting never occurred because Appellant had to
work late and then went to eat dinner. Appellant and “Molly” continued to send
messages back and forth as Appellant pleaded with “Molly” to wait longer for
him while he ate and “Molly” complaining about how long she had already been
waiting. Finally, after waiting nearly an hour, “Molly” accused Appellant of not
being serious about meeting her. The following exchange then occurred:
[Appellant]: Fine whatever you want
[“Molly”]: Mayb another day
[Appellant]: I don’t think so
[“Molly”]: K
Nevertheless, approximately 50 minutes later, Appellant sent “Molly” an-
other series of messages stating, “Can we please meet . . . I’ll pick you up no
one will see . . . I’ll buy you something too if you want.”
On 25 June 2017, Appellant told “Molly” that he had left for vacation but
would “be back after the 4th of July.” They continued to send each other mes-
sages during this time. On 29 June 2017, Appellant asked “Molly” whether she
had ever had drank alcohol. “Molly” told him that she had not and Appellant
told her he drank “hard liquor. Whiskey, scotch, bourbon, vodka etc” and then
added, “But I’ll give you something soft to start with.” It was at this point in
5
United States v. Wassan, No. ACM 39512
their conversation that “Molly” asked Appellant if “m4t” meant “men 4 teen”
and Appellant stated that it did, though some “call it something else too.” A
few minutes later, the following exchange occurred:
[Appellant]: Aww baby you’re so gorgeous I just wanna hold you
kiss you and feel you and feel your sexy body! Lay you down and
kiss you everywhere
[“Molly”]: Yeah?
[Appellant]: Yes baby make you feel amazing and so good
[“Molly”]: [smile emoji]
[Appellant]: I’ll teach you good and sexy things baby . . . You can
feel my d**k and make me so hard for you
[“Molly”]: Thts so hot
[Appellant]: Mmm good babe. You can touch it and grab it. Feel
it and see how it’s like. And then I’ll teach you to s**k it good
baby . . . Have you ever felt a d**k?
[“Molly”]: Not rlly [frown emoji]
[Appellant]: Aww babe you can feel mine all you want and touch
it. It’s all yours. And then I’ll teach you how to rub it and then
lick it good
[“Molly”]: Wht else do u want 2 do [smile emoji]
[Appellant]: I’ll lay you down and then slowly kiss your sexy body
and then go down on you and lick your wet p***y. Make you feel
like you’re in heaven . . . Eat it soo good make you c*m for me
[“Molly”]: [smile emoji with heart eyes] . . . Anything else lol?
[Appellant]: After that I’ll come back on top of you and slowly
put my d**k inside you and start f***ing you slowly and good.
Make you feel my big hard d**k inside you and start f***ing you
slowly and good. Make you feel my big hard d**k inside you as I
kiss you everywhere. I’ll make you moan so loud and yell for me.
As you feel me inside you . . . I’ll f**k your tight p***y good
[“Molly”]: Wow thts hot . . . [three smile emojis with heart eyes]
[Appellant]: Mmmm baby we can do soo much more . . . It’ll be
fun . . . You’ll be my sexy girl
...
[Appellant]: Aww baby would you wanna be my girl?
6
United States v. Wassan, No. ACM 39512
[“Molly”]: Yes [smile emoji] but r u ok w me being 14 . . . I jus
don’t wanna get in trbl
[Appellant]: You won’t baby . . . When is your bday?
[“Molly”]: Soon n august
[Appellant]: Aww okay babe . . . Goodnight and sweet dreams
As their conversation continued, Appellant told “Molly” that he was now 19
years old. “Molly” did not respond to this message until 10 July 2017, when she
told Appellant that she had gone on vacation with her mother to Alabama.
Appellant and “Molly” then resumed communicating on Kik and Appellant
again requested the pictures of “Molly” that she had sent him previously or
“some new ones if you want,” stating that his “conversations were deleted.” As
they again continued to try and set up a time to meet, they finally agreed to
5:15 p.m. on 12 July 2017 at the Bay View Club on Eglin AFB. When Appel-
lant arrived at the agreed upon meeting site, he was apprehended by AFOSI
agents.
2. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes,
38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324 (C.M.A. 1987) (citation omitted); see also United
States v. Humpherys,
57 M.J. 83, 94 (C.A.A.F. 2002) (citation omitted). “Beyond
a reasonable doubt” does not mean that the evidence must be free from conflict.
United States v. Wheeler,
76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing
United States v. Lips,
22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d,
77 M.J. 289
(C.A.A.F. 2018). “[I]n resolving questions of legal sufficiency, we are bound to
draw every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner,
56 M.J. 131, 134 (C.A.A.F. 2001) (cita-
tions omitted).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325. “In conducting this unique appellate role, we
take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presumption
of innocence nor a presumption of guilt’ to ‘make [our] own independent deter-
mination as to whether the evidence constitutes proof of each required element
7
United States v. Wassan, No. ACM 39512
beyond a reasonable doubt.’” Wheeler, 76 M.J. at 568 (alteration in original)
(quoting
Washington, 57 M.J. at 399).
With respect to the affirmative defense of entrapment, Rule for Courts-
Martial (R.C.M.) 916(g) states: “It is a defense that the criminal design or sug-
gestion to commit the offense originated in the Government and the accused
had no predisposition to commit the offense.” The defense has the initial bur-
den of showing some evidence that an agent of the Government originated the
suggestion to commit the crime. United States v. Whittle, 34 M.J. 206, 208
(C.M.A. 1992). Once raised, “the burden then shifts to the Government to prove
beyond a reasonable doubt that the criminal design did not originate with the
Government or that the accused had a predisposition to commit the offense . .
. .”
Id. (citations omitted). When a person accepts a criminal offer without an
extraordinary inducement to do so, he demonstrates a predisposition to commit
the crime in question.
Id. (citations omitted).
“Inducement” means more than merely providing the appellant the means
or opportunity to commit a crime. United States v. Howell,
36 M.J. 354, 360
(C.M.A. 1993). Instead, the Government’s conduct must:
create[ ] a substantial risk that an undisposed person or other-
wise law abiding citizen would commit the offense. Inducement
may take different forms, including pressure, assurances that a
person is not doing anything wrong, persuasion, fraudulent rep-
resentations, threats, coercive tactics, harassment, promises of
reward, or pleas based on need, sympathy, or friendship.
Id. at 359–60 (emphasis, internal quotation marks and citations omitted).
The Government may use undercover agents and informants to ferret out
crime and afford opportunities or facilities for criminals to act upon without
implicating the defense of entrapment. Jacobson v. United States, 503 U.S.
540, 548 (1992); see also
Howell, 36 M.J. at 358;
Whittle, 34 M.J. at 208. “Arti-
fice and stratagem may be employed to catch those engaged in criminal enter-
prises.” Sorrells v. United States,
287 U.S. 435, 441 (1932) (citations omitted);
see also United States v. Russell,
411 U.S. 423, 435–36 (1973). For example,
law enforcement officers may pretend to be someone other than a government
agent. See
Howell, 36 M.J. at 358.
In order to find Appellant guilty of an attempt offense under Article 80,
UCMJ, the Government was required to prove beyond a reasonable doubt that
he did a certain overt act, that the act was done with the specific intent to
commit a certain offense, that the act amounted to more than mere prepara-
tion, and that the act apparently tended to effect the commission of the in-
tended offense. See Manual for Courts-Martial, United States (MCM), pt. IV, ¶
4.b.
8
United States v. Wassan, No. ACM 39512
Proof that the attempted offenses actually occurred or were completed by
Appellant was not required. See United States v. Church, 29 M.J. 679, 686
(A.F.C.M.R. 1989), aff’d,
32 M.J. 70 (C.M.A. 1991); see also United States v.
Talkington, No. ACM 37785, 2013 CCA LEXIS 357, at *10 (A.F. Ct. Crim. App.
26 Apr. 2013) (unpub. op.), aff’d,
73 M.J. 212 (C.A.A.F. 2014). However, at the
time of the acts, Appellant must have intended every element of the attempted
offenses. Therefore, in order for Appellant to be found guilty of the attempted
offense of sexual assault of a child as alleged in Specification 1 of the Charge,
the Government was required to prove beyond a reasonable doubt that Appel-
lant intended to commit a sexual act upon “Molly” by causing his penis to pen-
etrate her vulva, and that at the time of the sexual act “Molly” had attained
the age of 12 years but had not attained the age of 16 years. See MCM, pt. IV,
¶ 45b.b.(3)(a). Similarly, in order for Appellant to be found guilty of the at-
tempted offense of sexual assault of a child as alleged in Specification 2 of the
Charge, the Government was required to prove beyond a reasonable doubt that
Appellant intended to commit a sexual act upon “Molly” by causing his penis
to penetrate her mouth, and that at the time of the sexual act “Molly” had
attained the age of 12 years but had not attained the age of 16 years. See MCM,
pt. IV, ¶ 45b.b.(3)(a).
In order for Appellant to be found guilty of the attempted offense of sexual
abuse of a child on divers occasions by committing lewd acts upon a child who
had not attained the age of 16 years, as alleged in Specification 3 of the Charge,
the Government was required to prove beyond a reasonable doubt that Appel-
lant committed a lewd act upon “Molly” by communicating indecent language,
to wit: explicit descriptions of sexual acts; that at the time “Molly” had not
attained the age of 16 years; and that Appellant did so with an intent to gratify
his own sexual desire. See MCM, pt. IV, ¶ 45b.b.(4)(d).
3. Analysis
At the close of the findings portion of the court-martial, the military judge
found a sufficient basis to instruct the court members that “[t]he evidence has
raised the issue of entrapment in relation to each of the charged offenses,” and
“[i]n order to find [Appellant] guilty, you must be convinced beyond a reasona-
ble doubt that [Appellant] was not entrapped.” In other words, the absence of
entrapment essentially became part of the case the Government had to prove
beyond a reasonable doubt in order to secure a conviction.
We are satisfied beyond a reasonable doubt Appellant was not entrapped.
An accused who commits an offense without an extraordinary inducement from
a Government agent to do so demonstrates a predisposition to commit the of-
fense, and is not the victim of entrapment. Whittle, 34 M.J. at 208 (citations
9
United States v. Wassan, No. ACM 39512
omitted). “Extraordinary inducement” requires more than simply being pre-
sented with the opportunity to commit the crime. See id. at 209 (citations omit-
ted).
Beginning with the email response from SA MB, posing as “Molly,” to the
advertisement Appellant posted on Craigslist and the Kik messages that en-
sued, the Government presented the opportunity for Appellant to commit the
offenses of which he was convicted. At the outset of their correspondence,
“Molly” informed Appellant that she was 14 years old, but Appellant then chose
to respond to and continue to engage in a series of messages with her for ap-
proximately one month even though “Molly” repeated that she was 14 years
old on two other occasions. Despite vague and flirtatious messages by both Ap-
pellant and “Molly,” it was Appellant who initiated the sexual conversation
through the use of explicit and graphic sexual terms. “Molly” did not initiate
sexually explicit conversations, nor did she request any sexually explicit im-
ages, nor did she coerce or threaten Appellant into any course of action. It was
Appellant, not “Molly,” who repeatedly tried to convince “Molly” to meet him
and who, on 12 July 2017, drove to meet her in person. See Sorrells v. United
States, 287 U.S. at 441 (“It is well settled that the fact that officers or employ-
ees of the Government merely afford opportunities or facilities for the commis-
sion of the offense does not defeat the prosecution.”).
Appellant now claims inducement because “the idea to engage in sexual
conversation and ultimately travel to lodging [the location of their scheduled
meeting on 12 July 2017] originated with SA MB” and that SA MB continued
to “flirt” with Appellant by calling Appellant “hot” and saying that “Molly”
liked “trying new things.” Appellant further claims that it was SA MB who
continued to try and lead the conversation towards “sexual activity” when Ap-
pellant “was not taking the bait.” Appellant contends that SA MB engaged in
a “significant amount of prompting” and played on the “weakness of an inno-
cent party.” We disagree. Although inducement “may take different forms, in-
cluding pressure . . . persuasion . . . threats, coercive tactics, harassment, [and]
promises of reward,” Appellant was induced only if the Government created “a
substantial risk that an undisposed person or otherwise law-abiding citizen
would commit the offense.” Howell, 36 M.J. at 359–60 (emphasis, internal quo-
tation marks and citations omitted).
The Government’s actions in Appellant’s case did not create such a risk and
did not constitute inducement. Appellant was very much not the “unwary in-
nocent” to be protected from Government inducement. Id. at 358 (citations
omitted). Appellant was the one who posted the advertisement on a website
where individuals are often looking for casual sexual encounters, as SA MB
testified during the trial. Despite trial defense counsel insisting during the
trial that the advertisement was targeted towards transgender individuals,
10
United States v. Wassan, No. ACM 39512
Appellant did not hesitate to continue messaging “Molly” after she told him
that she was a 14-year-old girl living on base with her mother. Instead, he
immediately and repeatedly asked her for her picture. After “Molly” provided
a picture, Appellant then repeatedly and persistently pleaded with her to set
up a meeting with him. When their first scheduled meeting did not occur and
Appellant indicated that he did not think they should try to meet again, within
one hour Appellant re-initiated contact with “Molly” begging her again to meet
him and offering to buy her “something.” When he eventually got his wish of a
scheduled meeting with “Molly,” Appellant showed up intending to engage in
oral and vaginal sex with her. Despite Appellant’s characterizations, none of
the Government’s actions rose to the level of inducement.
Appellant next claims that at trial the “only evidence presented showed a
complete lack of predisposition” to commit any of the charged offenses. Appel-
lant points out that he did not respond to an advertisement posted by SA MB,
did not send any sexually explicit photographs or request any, and did not
travel to the meeting location with any “paraphernalia showing he intended to
engage in sexual activity.” Appellant also asserts none of the digital evidence
provided any reasonable evidence of a predisposition to engage in sexual activ-
ity with minors, but only an interest in legal, adult pornography and interests
consistent with Appellant’s sexual orientation.
We conclude that Appellant demonstrated a predisposition to commit the
three convicted offenses, all of which he committed “without being offered ex-
traordinary inducements.” Whittle, 34 M.J. at 208 (citations omitted). While it
is true that SA MB responded to Appellant’s advertisement rather than vice
versa, it was Appellant who posted the advertisement, purporting to seek a
response from a transgender individual, and it was Appellant who decided to
continue to message “Molly” after she told him that she was a 14-year-old girl.
Neither the absence of any request for or transmission of sexually explicit pho-
tographs nor Appellant’s failure to bring any sexually-related paraphernalia
to his meeting with “Molly” are dispositive as to whether Appellant was pre-
disposed to attempt to sexually assault a child or engage in sexual abuse of a
child. Similarly, child pornography and contact with children are not necessary
precursors to or prerequisites for someone to engage in attempted sexual as-
sault or sexual abuse of a child. As described above, Appellant took the initia-
tive to commit the offenses. By doing so, he demonstrated his predisposition.
Finding beyond a reasonable doubt that the Government did not induce
Appellant to commit the three offenses of which he was convicted and that Ap-
pellant was predisposed to commit all three, we conclude there was no entrap-
ment. Having considered the evidence produced at trial in the light most fa-
11
United States v. Wassan, No. ACM 39512
vorable to the Government, we also conclude that the evidence was legally suf-
ficient for the court members to find that the Government proved beyond a
reasonable doubt that Appellant was not entrapped.
Having decided there was no entrapment, we next consider whether the
evidence is legally and factually sufficient to support the findings of guilt on
the Charge and its three specifications. Appellant posted an advertisement
seeking a sexual encounter to which “Molly” replied. Even after “Molly” told
Appellant that she was a 14-year-old child living on base with her mother, Ap-
pellant decided to continue messaging her, asking for her picture, and in less
than one month, pleading with her to meet him approximately 18 times, even
after she told him on two other occasions that she was only 14 years old. In
response to vague and flirtatious messages from “Molly,” Appellant initiated a
sexually graphic conversation with her, eventually describing, in graphic
terms, the sexual acts that Appellant wanted to perform on “Molly” and the
acts he wanted her to perform on him. The Kik messages Appellant wrote to
“Molly” constituted his offense of attempting to commit a lewd act on “Molly”
by communicating indecent language to her on at least two occasions on how
he wanted to engage in oral and vaginal sex with her. In his 29 June 2017 Kik
messages, Appellant articulated his desires to penetrate “Molly’s” vulva and
mouth with his penis. Then on 12 July 2017, Appellant did the act of going to
the location where “Molly” agreed to meet him, intending to engage in oral and
vaginal sex with a 14-year-old girl.
In assessing legal sufficiency, we are limited to the evidence produced at
trial and required to consider it in the light most favorable to the Prosecution.
The bulk of the evidence produced at trial consisted of Appellant’s own words
in the form of the Kik messages he sent “Molly.” While not all the evidence was
free from conflict, it did not have to be. See Wheeler, 76 M.J. at 568 (citation
omitted). We conclude that a reasonable factfinder could have found beyond a
reasonable doubt all the essential elements of Appellant’s three convicted of-
fenses: attempted sexual assault of a child, to wit: penetration of the child’s
vulva and mouth with his penis; and attempted sexual abuse of a child on di-
vers occasions by committing lewd acts, to wit: communicating sexually explicit
language to the child. Furthermore, in assessing factual sufficiency, after
weighing all the evidence in the record of trial and having made allowances for
not having personally observed the witnesses, we are convinced of Appellant’s
guilt beyond a reasonable doubt. Therefore, we find Appellant’s conviction of
the Charge and its specifications is both legally and factually sufficient.
B. Denial of Challenge for Cause for Implied Bias
Appellant asserts the military judge erred by denying the Defense’s chal-
lenge for cause for implied bias against Maj JS, one of the members of Appel-
lant’s court-martial. We disagree.
12
United States v. Wassan, No. ACM 39512
1. Additional Background
Prior to trial, the prospective court members completed a Court-Martial
Member Information Questionnaire in which they each answered a series of
questions. In his questionnaire, Maj JS indicated that a military member he
knew at a previous assignment, approximately ten years earlier, had been ar-
rested for setting up a meeting with a minor. In response to a question regard-
ing his feelings or impressions of that event, Maj JS stated that “[t]he member
should not have been contracting [sic] someone he believed to be underage,
therefore he should have been arrest [sic] and held accountable.”
During individual voir dire, Maj JS was questioned further by trial counsel
regarding the military member he knew at the previous assignment who had
been arrested. Maj JS described the individual as “just another Lieutenant in
the squadron” with whom his interactions were “more work-related” than as
somebody he considered a friend. Maj JS explained that his knowledge of the
situation with the lieutenant was that he “just heard that it had happened and
some of the details that were very similar to what you would see on To Catch
a Predator.” Maj JS stated he did not know whether the lieutenant was court-
martialed, the outcome of the case, or whether the lieutenant was still in the
Air Force. Maj JS stated that he had no concern about being able to disregard
that situation and decide Appellant’s case on the evidence presented and the
instructions from the military judge.
Trial defense counsel asked Maj JS about his father and his relationship
with his father. Maj JS stated his father retired from the Air Force in 1981
after serving in then-Security Police since 1961. Maj JS stated he thought his
father had worked only as a guard and not as an investigator or inspector. Trial
defense counsel also asked Maj JS about his Court-Martial Member Question-
naire response regarding the lieutenant, specifically what Maj JS meant when
he said that the lieutenant should have been arrested and “held accountable.”
Maj JS stated that from what he understood, the lieutenant had sent “pictures
of his genitalia to someone that he—it made it sound like he knew was under-
age, and then set up a meeting with that individual.” Maj JS said that if that
was true, he thought he should be arrested and that when he said “held ac-
countable,” he meant that the lieutenant “would have to go to trial and all the
evidence would come out as far as whether he was guilty or innocent.” Trial
defense counsel then asked if someone would be “held accountable” if found to
be “not guilty.” Maj JS answered that “yes, they were held accountable for their
actions, and those actions were deemed not to be illegal or not sufficient to be
illegal.”
13
United States v. Wassan, No. ACM 39512
Trial defense counsel also asked Maj JS about his familiarity with the Cas-
ual Encounters section of Craigslist. Maj JS responded that he had seen a re-
cent news article about legislation intended to hold “a lot of these casual en-
counter websites” accountable in connection with human trafficking.
The military judge then questioned Maj JS about any impact his knowledge
of the lieutenant’s case would have on Maj JS’s consideration of Appellant’s
case and whether Maj JS would presume that Appellant was not guilty until
he had heard all the evidence and had a chance to deliberate. Maj JS said that
he would. The military judge also asked Maj JS about his use of the phrase
“held accountable” and Maj JS stated that he meant “the process of being in
court” and that he was not implying that there was going to be some negative
repercussion for what someone had done. The military judge asked Maj JS
whether he had any prejudice towards people who used the Casual Encounter
websites for consensual and legal relationships. Maj JS stated that he did not
have any issue with that as long as it was legal.
Trial defense counsel challenged Maj JS for cause based on implied bias
asserting that Maj JS maintained a close relationship with his father, who had
worked in law enforcement for a certain period of time, that Maj JS was aware
that the Casual Encounters Section of Craigslist had been shut down based on
legislation resulting from information that the website had been used to exploit
children, and Maj JS’s knowledge of the lieutenant in his unit that was in-
volved in a similar case. The military judge denied the challenge for cause ad-
dressing each of the bases raised by trial defense counsel and recognizing the
liberal grant mandate for defense challenges. The military judge made the fol-
lowing ruling on the record:
All right. I am going to deny the challenge for cause against [Maj
JS]. I don’t find the fact that his father was security police back
in the [Strategic Air Command] days guarding planes has any
bearing really on my determination on [Maj JS]. There is no in-
dication that his father engaged in any law enforcement activi-
ties that would even remotely cause me concern.[ 7]
With respect to his knowledge of Craigslist being shut down as I
pointed out, that’s in the news. I’ve seen multiple stories in the
news about that. So, it’s not surprising to me that somebody
might be aware of that. When asked about it, he specifically said
as long as people are using those sites for legal things, he had no
7 On appeal, Appellant does not raise Maj JS’s relationship with his father as a basis
for implied bias. We have reviewed the record and find that the military judge did not
err in denying the challenge for cause on this basis.
14
United States v. Wassan, No. ACM 39512
problem with it. So, he didn’t assume that everybody who was
going to Craigslist or Back Page was using it for illegal things.
With respect to the Lieutenant, I recall that he said that he
didn’t make any assumptions about the guilt of the Lieutenant,
but ultimately I think it’s understandable that that if somebody
hears that somebody they know was trying to engage in sexual
acts with the minor, including sending a picture of their genita-
lia, that person might think that being arrested and being held
accountable would be appropriate if that’s all you knew were the
allegations. He admits that he doesn’t know what happened in
the case, and he agreed that he didn’t make any assumptions
about guilt. So, I don’t think his responses to any of those ques-
tions raise any significant concern. I mean, I don’t think it is
unusual that somebody would say if they hear just the basic facts
of what the allegations are that a person—I think it’s not unu-
sual that a person would say, okay, that person should be held
accountable just based on what I’ve heard when all I’ve heard is
limited information. So, I don’t find that any objective person
would have any substantial doubt or really any doubt about the
fairness of this court-martial proceeding if [Maj JS] were to re-
main on the panel. Even applying the liberal grant mandate, I
don’t think this is particularly close. I don’t think [Maj JS] is
going to have any problems serving as a fair, impartial and un-
biased member of this panel, and I think any reasonable member
of the public would see it the same way. So, I am going to deny
that challenge for cause.
2. Law
Rule for Courts-Martial 912(f)(1)(N) provides that a member shall be ex-
cused for cause whenever it appears that the member “[s]hould not sit as a
member in the interest of having the court-martial free from substantial doubt
as to legality, fairness and impartiality.”
Implied bias is “viewed through the eyes of the public, focusing on the ap-
pearance of fairness.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F.
2010) (quoting United States v. Clay,
64 M.J. 274, 276 (C.A.A.F. 2007)). There-
fore, appellate courts employ an objective standard when reviewing a military
judge’s decision regarding implied bias. United States v. Strand,
59 M.J. 455,
458 (C.A.A.F. 2004). “The hypothetical ‘public’ is assumed to be familiar with
the military justice system.”
Id. (citing United States v. Downing,
56 M.J. 419,
423 (C.A.A.F. 2002)). “In reaching a determination of whether there is implied
bias . . . the totality of the circumstances should be considered.” United States
v. Rogers,
75 M.J. 270, 273 (C.A.A.F. 2016) (alteration in original) (internal
15
United States v. Wassan, No. ACM 39512
quotation marks omitted) (quoting United States v. Peters, 74 M.J. 31, 34
(C.A.A.F. 2015)).
In Rogers, the United States Court of Appeals for the Armed Forces fur-
ther stated:
“This Court’s standard of review on a challenge for cause prem-
ised on implied bias is less deferential than abuse of discretion,
but more deferential than de novo review.” Under this standard,
“[w]e do not expect record dissertations but, rather, a clear sig-
nal that the military judge applied the right law.” Indeed,
“where the military judge places on the record his analysis and
application of the law to the facts, deference is surely war-
ranted.” As we have previously made clear, however, “[w]e will
afford a military judge less deference if an analysis of the im-
plied bias challenge on the record is not provided.” In cases
where less deference is accorded, the analysis logically moves
more towards a de novo standard of review.
75 M.J. at 273 (alterations in original)(citations omitted).
In reviewing challenges for cause under the implied bias standard, military
judges are required to follow the “liberal grant” mandate, which “supports the
UCMJ’s interest in ensuring that members of the military have their guilt and
innocence determined ‘by a jury composed of individuals with a fair and open
mind.’” United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005) (quoting
United States v. Smart,
21 M.J. 15, 18 (C.M.A. 1985)). “[M]ilitary judges must
follow the liberal-grant mandate in ruling on challenges for cause, but we will
not overturn the military judge’s determination not to grant a challenge except
for a clear abuse of discretion in applying the liberal-grant mandate.” United
States v. White,
36 M.J. 284, 287 (C.M.A. 1993). “[I]n the absence of actual bias,
where a military judge considers a challenge based on implied bias, recognizes
his duty to liberally grant defense challenges, and places his reasoning on the
record, instances in which the military judge’s exercise of discretion will be
reversed will indeed by rare.”
Clay, 64 M.J. at 277.
3. Analysis
Having reviewed all of the questions posed to Maj JS in the pretrial ques-
tionnaire and during voir dire and each of his answers, we conclude the mili-
tary judge did not abuse his discretion in denying the Defense’s challenge for
cause against Maj JS. Appellant asserts that Maj JS expressed views demon-
strating a predisposition towards guilt and that the military judge’s failure to
grant the challenge for cause resulted in the objective appearance of unfairness
in the proceedings. We disagree.
16
United States v. Wassan, No. ACM 39512
Maj JS thoroughly answered each of the questions posed by trial counsel,
trial defense counsel, and the military judge. Maj JS described his limited
knowledge of the lieutenant’s case, which had occurred approximately ten
years earlier. He did not know the outcome of the case and consequently ex-
pressed no opinion regarding its outcome. Maj JS also clearly described his
nonstandard usage of the term “held accountable” as not meaning “presumed
guilty” and acknowledged it as “maybe a bad choice of words.”
With respect to Maj JS’s awareness of legislation regarding the Casual En-
counters section of Craigslist, he explained what he had read in the media, and
there was no indication that media coverage had any connection to Appellant’s
case whatsoever. As we have noted in prior opinions, military members are
expected to stay informed about current events, and absent a more specific
connection to Appellant’s trial Maj JS’s awareness of those events do not dis-
qualify him from serving as a court-martial member. 8
As quoted in full above, the military judge clearly discussed his analysis
and application of the law to the facts in denying the challenge for cause for
implied bias. He considered the liberal grant mandate concluding that it was
not warranted in this case. Perhaps most significantly, Maj JS stated that he
would set aside any of his personal experiences and focus on the evidence pro-
duced in Appellant’s court-martial, responses which would allay the fears of
any objective observer that Maj JS appeared to be biased against Appellant.
Based upon the totality of the above factual circumstances in this case, we find
no risk that an objective member of the public would perceive Maj JS’s partic-
ipation as a court member as rendering Appellant’s trial less than fair.
C. Sentencing Evidence Regarding Naturalization Status
Appellant asserts that the military judge erred in precluding the court
members from considering evidence of the potential impact of Appellant’s con-
viction on his citizenship status. We disagree.
1. Additional Background
During presentencing proceedings, Appellant sought to introduce a written
unsworn statement with three documents attached: (1) a screenshot of the U.S.
Citizenship and Immigration Services Policy Manual, Chapter 7, Revocation of
Naturalization; (2) an extract from 8 U.S.C. § 1439, entitled Naturalization
through service in the armed forces; and (3) a Sex Offender Registration Listing
8See, e.g., United States v. Bischoff, 74 M.J. 664 (A.F. Ct. Crim. App. 2015) (knowledge
of another trial pertaining to the same type of offense not disqualifying). Even pos-
sessing some knowledge of the particular case being tried is not per se disqualifying.
See, e.g., United States v. Rockwood,
52 M.J. 98, 106 (C.A.A.F. 1999) (citation omitted);
United States v. Napoleon,
46 M.J. 279, 283 (C.A.A.F. 1997) (citations omitted).
17
United States v. Wassan, No. ACM 39512
dated 11 March 2013. The military judge sustained the trial counsel’s objection
to the three attachments because they did not constitute statements of the Ap-
pellant.
Appellant’s written unsworn statement, without the three attachments,
was admitted as a defense exhibit without further objection. In it, Appellant
stated that he joined the Air Force on 6 September 2016 and became a natu-
ralized U.S. citizen in December 2016. Discussing his fears about the future,
Appellant stated:
In the short term, I am terrified about my citizenship. I have
reviewed documents from the U.S. Citizenship and Immigration
Service, as well as legal references to 8 U.S.C. § 1440(b), and I
have learned this court-martial conviction makes me subject to
having my naturalization revoked. I have lived in this country—
my home—since I was 10 years old. When I became a citizen, I
renounced my Pakistani citizenship. I honestly do not know
where I will go.
Despite presenting this information in his written unsworn statement
without any objection from the Government, Appellant asserts on appeal that
because the military judge excluded the attachments, he was essentially forced
to take the stand and testify under oath. 9 Appellant testified to essentially the
same information he included in his unsworn statement regarding his belief
that his “naturalization might be revoked because of this [court-martial]”
based on what he had seen “through the U.S. laws and stuff like that.”
Trial defense counsel then sought to introduce a separate defense exhibit—
a six-page document consisting of an extract of 8 U.S.C. §1440, Naturalization
through active-duty service in the Armed Forces during World War I, World
War II, Korean hostilities, or other periods of military hostilities, and a copy of
an article from Citizen Path entitled “Expedited Citizenship Through the Mil-
itary.” Trial counsel objected to this exhibit as “a collateral matter” that was
“speculative in nature” offered without any evidence that Appellant was sub-
ject to the process described therein and questioned “how this would apply in
9 Despite Appellant’s assertion, we are not persuaded that the military judge’s ruling
“virtually eliminated” Appellant’s right to decide whether to provide sworn testimony.
Appellant had the right to testify under oath if he chose to do so. Under R.C.M.
1001(c)(2)(C), Appellant also had the right to deliver an oral unsworn statement in
addition to his written unsworn statement. Our review of the record does not convince
us that Appellant was compelled in some way to testify under oath. In fact, the sub-
stance of Appellant’s sworn testimony was essentially the same as the information
contained in his written unsworn statement.
18
United States v. Wassan, No. ACM 39512
practice” to Appellant. Trial counsel also asserted that it failed the Mil. R. Evid.
403 balancing test.
Relying on the decisions in United States v. Talkington, 73 M.J. 212
(C.A.A.F. 2014), and United States v. Bedania,
12 M.J. 373 (C.M.A. 1982), the
military judge found that the issue of any possible impact on Appellant’s nat-
uralization status constituted a collateral matter. The military judge also con-
cluded that the “document does not require that [Appellant] be deported or his
naturalization be revoked” and that there is “insufficient evidence that this
statute even applies in this circumstance.” The military judge then provided
his analysis under Mil. R. Evid. 403 on the record:
I do find that the relevance—in light of the uncertainties is sub-
stantially outweighed by the danger of confusion of the issues
from the members. The members are going to have all the same
questions trial counsel has and that I have with regard to how
this works, is it mandatory, and ultimately, since it is a collat-
eral matter, I find that it’s not admissible under [Mil. R. Evid.]
403 as well.
The trial counsel requested and the military judge provided an instruction
to the court members that collateral consequences should not be a part of their
deliberations when deciding an appropriate sentence. However, trial defense
counsel was permitted to argue the possible impact to Appellant’s citizenship
status during sentencing argument without objection from the trial counsel.
2. Law
We review a military judge’s decision to admit or exclude sentencing evi-
dence for an abuse of discretion. United States v. Stephens, 67 M.J. 233, 235
(C.A.A.F. 2009) (citing United States v. Manns,
54 M.J. 164, 166 (C.A.A.F.
2000)). “An abuse of discretion occurs when a military judge either erroneously
applies the law or clearly errs in making his or her findings of fact.” United
States v. Donaldson,
58 M.J. 477, 482 (C.A.A.F. 2003) (citation omitted).
A court-martial is “to concern [itself] with the appropriateness of a partic-
ular sentence for an accused and his offense, without regard to the collateral
administrative effects of the penalty under consideration.” United States v.
Griffin, 25 M.J. 423, 424 (C.M.A. 1988). “A collateral consequence is ‘[a] pen-
alty for committing a crime, in addition to the penalties included in the crimi-
nal sentence.’”
Talkington, 73 M.J. at 215 (alteration in original) (internal quo-
tation marks and citations omitted).
Sentencing evidence, like all other evidence, is subject to the balancing test
of Mil. R. Evid. 403. Manns, 54 M.J. at 166. A military judge enjoys “wide dis-
cretion” in applying Mil. R. Evid. 403.
Id. When a military judge conducts a
proper balancing test under Mil. R. Evid. 403, the ruling will not be overturned
19
United States v. Wassan, No. ACM 39512
unless there is a “clear abuse of discretion.” Id. A military judge abuses his
discretion when (1) the findings of fact upon which he bases his ruling are not
supported by the evidence of record; (2) he uses incorrect legal principles; or (3)
his application of the correct legal principles to the facts is clearly unreasona-
ble. United States v. Ellis,
68 M.J. 341, 344 (C.A.A.F. 2010) (citing United
States v. Mackie,
66 M.J. 198, 199 (C.A.A.F. 2008)).
3. Analysis
Despite Appellant’s assertions to the contrary, the military judge did not
err by excluding the attachments to Appellant’s unsworn statement. The plain
language of R.C.M. 1001(c)(2)(C) permits an unsworn statement given “by the
accused,” his counsel, or both. The documents Appellant sought to attach to his
unsworn statement are neither a statement by Appellant nor by counsel on his
behalf. See, e.g., United States v. Daniels, 2014 CCA LEXIS 769 (A.F. Ct. Crim.
App. 2014) (unpub. op.) (in which this court upheld a military judge’s decision
to exclude a statement not written by the appellant from the unsworn state-
ment). Moreover, consistent with R.C.M. 1001(c), the military judge did not
preclude Appellant from commenting on his concerns about the impact of the
court-martial on his citizenship status and his fear of being deported, which
Appellant brought to the attention of the members both in his sworn testimony
and in his written unsworn statement that the military judge admitted as a
defense exhibit. We conclude that the military judge did not abuse his discre-
tion by excluding the documents attached to Appellant’s unsworn statement.
As discussed above, the military judge held that any potential impact of
Appellant’s sentence on his naturalization status was a collateral matter, re-
lying on the decision of our superior court in Talkington and the decision of
their predecessor court in Bedania. While not addressing the court’s holding in
Bedania that an issue like deportation is a collateral matter, Appellant asserts
that the military judge misapplied the decision in Talkington. Appellant ar-
gues that impact on his naturalization is akin to the impact on retirement ben-
efits addressed in Talkington and that the military judge improperly restricted
Appellant from addressing matters that could result from “the sentence itself,
as opposed to the conviction.” See Talkington, 73 M.J. at 217. We are not per-
suaded.
We do not agree that the deprivation of military retirement benefits result-
ing from a punitive discharge addressed in Talkington is at all analogous to
the speculative impact of a dishonorable discharge on Appellant’s naturaliza-
tion status. The evidence before the military judge did not establish that Ap-
pellant had even received his citizenship as a result of his military service such
that he would be subject to having his citizenship revoked, thereby making him
eligible for deportation. Consequently, Appellant’s citizenship status consti-
tuted a collateral matter. Further, the distinction between the impact “from
20
United States v. Wassan, No. ACM 39512
the sentence itself as opposed to the conviction” argued by Appellant is a dis-
tinction without a difference. In Appellant’s case, any potential impact to his
citizenship status was a consequence of the mandatory dishonorable discharge
resulting from his conviction. The court members had no discretion as to
whether to impose the dishonorable discharge. The military judge also con-
ducted a proper Mil. R. Evid. 403 balancing test and concluded that any pro-
bative value of the evidence was substantially outweighed by a danger of con-
fusing the issues. We find that the military judge did not abuse his discretion
by excluding the documents attached to Appellant’s unsworn statement. We
also find the military judge did not clearly abuse his discretion when he ex-
cluded the separate exhibit consisting of documents discussing naturalization
through military service under Mil. R. Evid. 403.
Even assuming arguendo that the military judge erred by excluding the
documents attached to Appellant’s unsworn statement and the separate ex-
hibit pertaining to the potential impact of the court-martial on Appellant’s nat-
uralization status, Appellant has failed to establish prejudice under the facts
of this case. “When there is error in the admission of sentencing evidence, the
test for prejudice ‘is whether the error substantially influenced the adjudged
sentence.’” United States v. Barker, 77 M.J. 377, 384 (C.A.A.F. 2018) (quoting
United States v. Sanders,
67 M.J. 344, 346 (C.A.A.F. 2009)). We consider four
factors when determining whether an error had a substantial influence on the
sentence: “(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.”
Id. (citations omitted). We find that the balance of
these four factors weighs in favor of the Government—the Government’s case
was strong, though the Defense’s case also had strong points; the materiality
of the evidence was extremely limited because similar information was pre-
sented elsewhere during the Defense’s case; and the quality of the evidence
was not really in question. In addition, as noted above, the court members were
required to impose a dishonorable discharge as a result of Appellant’s convic-
tion. We conclude that even if the military judge erred by excluding the docu-
ments attached to Appellant’s written unsworn statement and the separate
exhibit discussing naturalization that the error would not have had a substan-
tial influence on the sentence imposed by the court-members.
D. Denial of Expert Assistance
Appellant contends that the military judge erred by denying the defense
motion to compel the appointment of an expert consultant in the field of devel-
opmental psychology and linguistics. We disagree.
21
United States v. Wassan, No. ACM 39512
1. Additional Background
On 16 February 2018, the Defense requested the appointment of Dr. GH to
serve as an expert in the field of forensic psychology. Specifically, the Defense
request stated its primary purposes for using Dr. GH are “(1) to perform a psy-
chosexual assessment of Appellant looking for predisposition to engage in sex-
ual acts with children, and (2) to assess Appellant’s psychological vulnerability
to being entrapped by law enforcement.” On 2 March 2018, the general court-
martial convening authority (GCMCA) approved the Defense’s request for the
appointment of Dr. GH as an expert consultant.
Also on 16 February 2018, the Defense requested the appointment of Dr.
MD to serve as an expert consultant in the fields of developmental psychology
and linguistics analysis. On 2 March 2018, the GCMCA denied the Defense’s
request for the appointment of Dr. MD as an expert consultant, concluding that
the Defense “failed to show that the production of Dr. [MD] is relevant and
necessary to the preparation or presentation of the defense case.”
On 19 March 2018, the Defense filed a motion to compel the Government
to appoint an expert in the field of developmental psychology and linguistics,
which the Government opposed. On 16 April 2018, after considering the exten-
sive filings of the parties, the military judge denied the motion to compel in a
written ruling, concluding that:
[T]he court finds that the defense has established only a mere
possibility that a [sic] Dr. [MD] would provide some level of as-
sistance that could not otherwise be provided by a highly quali-
fied expert in the field of forensic psychology. The court finds
that the defense has not met its burden to establish that the de-
nial of the assistance of Dr. [MD] would result in a fundamen-
tally unfair trial. The court therefore concludes that the defense
has failed to meet its burden of demonstrating the necessity of
an expert in the field of developmental psychology and linguis-
tics.
Appellant asserts that the military judge misapplied the law in deciding
the motion. We disagree.
2. Law
We review a military judge’s ruling on a motion to compel expert assistance
for an abuse of discretion. United States v. Anderson, 68 M.J. 378, 383
(C.A.A.F. 2010). “An abuse of discretion occurs when the trial court’s findings
of fact are clearly erroneous or if the court’s decision is influenced by an erro-
neous view of the law.” United States v. Lloyd,
69 M.J. 95, 99 (C.A.A.F. 2010)
(citing United States v. Freeman,
65 M.J. 451, 453 (C.A.A.F. 2008)).
22
United States v. Wassan, No. ACM 39512
This “standard is a strict one, calling for more than a mere difference of
opinion. The challenged action must be arbitrary, fanciful, clearly unreasona-
ble, or clearly erroneous.” United States v. McElhaney, 54 M.J. 120, 130
(C.A.A.F. 2000) (internal quotation marks and citations omitted). “‘When judi-
cial action is taken in a discretionary matter, such action can not [sic] be set
aside by a reviewing court unless it has a definite and firm conviction that the
court below committed a clear error of judgment in the conclusion it reached
upon weighing of the relevant factors.’”
Ellis, 68 M.J. at 344 (citing United
States v. Sanchez,
65 M.J. 145, 148 (C.A.A.F. 2007) (quoting United States v.
Houser,
36 M.J. 392, 397 (C.M.A. 1993))).
[S]ervicemembers are entitled to . . . expert assistance when nec-
essary for an adequate defense. The mere possibility of assis-
tance is not sufficient to prevail on the request. Instead, the ac-
cused has the burden of establishing that a reasonable probabil-
ity exists that (1) an expert would be of assistance to the defense
and (2) that denial of expert assistance would result in a funda-
mentally unfair trial. To establish the first prong, the accused
must show (1) why the expert assistance is needed; (2) what the
expert assistance would accomplish for the accused; and (3) why
the defense counsel were unable to gather and present the evi-
dence that the expert assistance would be able to develop.
Freeman, 65 M.J. at 458 (alteration in original) (internal quotation marks and
citations omitted).
3. Analysis
Appellant asserts that the military judge held Appellant to a higher stand-
ard of proof than required by law to establish that Dr. MD’s assistance was
necessary and that denial would result in a fundamentally unfair trial. Appel-
lant argues the military judge required the Defense to establish the necessity
of expert assistance by a preponderance of the evidence rather than by a rea-
sonable probability. The basis of this assertion is apparently paragraph 6 of
the military judge’s written ruling, under the heading “Conclusions of Law,” in
which he stated: “Fundamental to any motion to compel expert assistance is
the duty of the moving party to educate the court, and prove by a preponder-
ance of the evidence that expert assistance is necessary for an adequate de-
fense.” While this statement taken alone could create the impression that the
military judge held the Defense to a higher standard of proof than required by
law, a review of the entirety of military judge’s ruling convinces us otherwise.
In his written ruling, the military judge correctly stated that Appellant had
the burden of proof on any factual issue necessary to resolve the motion and
the standard to prove such issue was by a preponderance of the evidence. The
23
United States v. Wassan, No. ACM 39512
military judge also correctly noted that Appellant had the burden to establish
a reasonable probability that the expert would be of assistance to the Defense
and that denial of that assistance would result in a fundamentally unfair trial.
Noting that the Defense had requested the appointment of Dr. GH as an expert
in forensic psychology and his appointment had been approved, the military
judge discussed the ways in which the Defense advocated that Dr. MD’s assis-
tance was necessary for the Defense. The military judge found that evidence
presented in support of the motion failed to establish that Dr. MD’s expert as-
sistance was necessary for an adequate defense and that even though the De-
fense asserted Dr. GH was unable to provide the same expertise as Dr. MD,
the Defense failed to present any evidence to support that contention.
The military judge concluded that the Defense had established “nothing
more than the mere possibility” that Dr. MD’s assessment of the linguistic as-
pects of the chat logs between Appellant and “Molly” would lead to “any favor-
able or even relevant evidence in this case.” Moreover, the military judge con-
cluded that the Defense presented no evidence that Dr. GH was “ill-equipped
in any way to assist the defense in presenting evidence regarding recidivism
or evidence regarding [Appellant]’s susceptibility to manipulation or law en-
forcement tactics.”
The military judge’s denial of the motion to compel, captured in his written
ruling with findings of fact and conclusions of law, is amply supported by evi-
dence presented on the motion. At trial, the Defense raised and argued that
Appellant was entrapped into committing the offenses, which required (1) the
Government to prove that Appellant was predisposed to commit the offenses
and that he had not been induced to do so and (2) the military judge to instruct
the court members on the defense of entrapment. We conclude that the military
judge did not abuse his discretion in denying the Defense motion to compel.
E. Constitutionality of Mandatory Dishonorable Discharge
Appellant next asserts that imposition of a mandatory dishonorable dis-
charge is unconstitutional as applied to him in that it violates the Eighth
Amendment prohibition against cruel and unusual punishment. We disagree.
1. Law
We review the constitutionality of a statute de novo. United States v. Dis-
ney, 62 M.J. 46, 48 (C.A.A.F. 2005) (citations omitted). We also review an alle-
gation of cruel and unusual punishment de novo. United States v. Pena,
64 M.J.
259, 265 (C.A.A.F. 2007) (citation omitted).
The sentence of an accused found guilty of attempted sexual assault of a
child in violation of Article 80, UCMJ, “must include, at a minimum, dismissal
or dishonorable discharge,” as applicable. Article 56(b), UCMJ, 10 U.S.C. §
856(b).
24
United States v. Wassan, No. ACM 39512
2. Analysis
The United States Supreme Court has rejected the argument that the
Eighth Amendment bars mandatory punishments for adult offenders with the
exception of the death penalty. See Harmelin v. Michigan, 501 U.S. 957, 994–
95 (1991) (upholding mandatory sentence to confinement for life). 10 “There can
be no serious contention, then, that a sentence which is not otherwise cruel
and unusual becomes so simply because it is ‘mandatory.’”
Id. at 995 (citation
omitted); see also United States v. Curtis,
44 M.J. 106, 157 (C.A.A.F. 1996)
(quoting
Harmelin, 501 U.S. at 994–95).
Appellant argues that the mandatory dishonorable discharge constitutes
constitutionally-prohibited cruel and unusual punishment because of his
youth, though not his chronological age of 19 years old. Noting that he is “just
barely” above the age of majority of 18 years old, Appellant asserts that the
mandatory dishonorable discharge is punishment for a lifetime and is “equiv-
alent to a life sentence.” In United States v. Miller, 567 U.S. 460 (2012), the
Supreme Court stated that that maturity should be considered when sentenc-
ing a juvenile offender. Appellant attempts to place himself in the same cate-
gory as a juvenile offender, i.e., one who has not attained the age of majority.
We do not find these circumstances comparable. While a dishonorable dis-
charge may terminate Appellant’s military status and remain a lifelong
stigma, it does not place him in confinement for life.
An accused does have the right to have his or her sentence determined by
“‘individualized consideration’ . . . ‘on the basis of the nature and seriousness
of the offense and the character of the offender.’” United States v. Snelling, 14
M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy,
27 C.M.R. 176,
180–81 (C.M.A. 1959)). This does not prohibit Congress from establishing a
minimum (or maximum) punishment for a given offense, as those limits indi-
cate congressional determination of lower and upper limits of punishment ap-
propriate for a given offense. In Appellant’s case, while he was still subject to
a dishonorable discharge, the members were at liberty to sentence him to con-
finement ranging from no confinement to 35 years of confinement. 11 That is,
even with a mandatory punitive discharge, the sentencing authority had great
latitude to make an individualized determination as to an appropriate sen-
tence in Appellant’s case.
10Mandatory life without parole has been rejected for juvenile offenders. See Miller v.
Alabama,
567 U.S. 460 (2012).
11The military judge merged the two attempted sexual assault offenses for the purpose
of sentencing, reducing the maximum confinement that could be adjudged from 55
years to 35 years.
25
United States v. Wassan, No. ACM 39512
A dishonorable discharge is an unquestionably severe punishment with sig-
nificant impacts and a long-lasting stigma. See United States v. Mitchell, 58
M.J. 446 (C.A.A.F. 2003). The offense of attempted sexual assault of a child is
also serious even though there was no actual child victim in this particular
case. A mandatory punitive discharge is well within the range of minimum
punishments Congress could rationally establish with respect to the offense of
attempted sexual assault of a child. We find no violation of the constitutional
prohibition against cruel and unusual punishment by the imposition of a man-
datory dishonorable discharge in this case.
F. Cumulative Error
Appellant asserts that even if none of the individual errors alleged by Ap-
pellant requires that the findings and sentence be set aside, the cumulative
effect of the errors deprived him of a fair trial and warrant setting aside the
findings and sentence. Again, we disagree.
1. Law
We review claims of cumulative error de novo. United States v. Pope, 69
M.J. 328, 335 (C.A.A.F. 2011). “Under the cumulative error doctrine, ‘a number
of errors, no one perhaps sufficient to merit reversal, in combination necessi-
tate the disapproval of a finding.’”
Id. (quoting United States v. Banks,
36 M.J.
150, 170–71 (C.M.A. 1992)). “Assertions of error without merit are not suffi-
cient to invoke this doctrine.” United States v. Gray,
51 M.J. 1, 61 (C.A.A.F.
1999). We will reverse the proceedings only if we determine the cumulative
errors denied an appellant a fair trial. See
Pope, 328 M.J. at 335. In addition,
“appellate courts are far less likely to find cumulative error where the record
contains overwhelming evidence of a defendant’s guilt.” United States v. Flores,
69 M.J. 366 (C.A.A.F. 2011) (citing United States v. Dollente,
45 M.J. 234, 242
(C.A.A.F. 1996)).
2. Analysis
As discussed fully above, we found no error in Appellant’s case and the ev-
idence of Appellant’s guilt of the offenses was overwhelming. Consequently,
the cumulative error doctrine is inapplicable in this case.
G. Timeliness of Appellate Review
1. Additional Background
Appellant’s case was originally docketed with this court on 25 July 2018.
As Appellant correctly asserts, the delay in rendering this decision after 25
January 2020 is presumptively unreasonable. However, we determine there
has been no violation of Appellant’s right to due process and a speedy post-trial
review and appeal.
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United States v. Wassan, No. ACM 39512
2. Law
We review de novo whether an appellant has been denied the right to due
process and a speedy post-trial review and appeal. United States v. Moreno, 63
M.J. 129, 135 (C.A.A.F. 2006) (citations omitted). A presumption of unreason-
able delay arises when appellate review is not completed and a decision is not
rendered within 18 months of the case being docketed before the court.
Id. at
142. When a case is not completed within 18 months, such a delay is presump-
tively unreasonable and triggers an analysis of the four factors laid out in
Barker v. Wingo,
407 U.S. 514, 530 (1972): “(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.”
Moreno, 63 M.J. at 135 (citations omitted).
Moreno identified three types of cognizable prejudice arising from post-trial
processing delay: (1) oppressive incarceration; (2) anxiety and concern; and (3)
impairment of ability to present a defense at a rehearing.
Id. at 138–39.
“We analyze each factor and make a determination as to whether that fac-
tor favors the Government or [Appellant].”
Id. at 136 (citation omitted). Then,
we balance our analysis of the factors to determine whether a due process vio-
lation occurred. Id.; see also
Barker, 407 U.S. at 533 (“[C]ourts must still en-
gage in a difficult and sensitive balancing process.”). “No single factor is re-
quired for finding a due process violation and the absence of a given factor will
not prevent such a finding.”
Moreno, 63 M.J. at 136 (citation omitted). How-
ever, 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).
3. Analysis
The court is affirming the findings and sentence in this case. Appellant,
who is no longer in confinement, has not pointed to any prejudice resulting
from the presumptively unreasonable delay, and we find none.
Finding no Barker prejudice, we also find the delay is not so egregious that
it adversely affects the public’s perception of the fairness and integrity of the
military justice system. As a result, there is no due process violation. See
Toohey, 63 M.J. at 362. In addition, we determine that, even in the absence of
a due process violation, the delay does not merit relief. See United States v.
Tardif,
57 M.J. 219, 223–24 (C.A.A.F. 2002). Applying the factors articulated
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 the time taken to review Appellant’s
case is not unreasonable and relief based on the delay is unwarranted.
27
United States v. Wassan, No. ACM 39512
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.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
28
