U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                           ________________________

                               No. ACM 39664
                           ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                           Ethan J. WALTON
             Air Force Academy Cadet, U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 15 October 2020
                          ________________________

Military Judge: Thomas J. Alford.
Approved sentence: Dismissal, confinement for 30 days, and a repri-
mand. Sentence adjudged 20 November 2018 by GCM convened at the
United States Air Force Academy, Colorado.
For Appellant: Major M. Dedra Campbell, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.
Senior Judge MINK delivered the opinion of the court, in which Judge
KEY and Judge ANNEXSTAD joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                          ________________________

MINK, Senior Judge:
    A general court-martial composed of a military judge convicted Appellant,
in accordance with his pleas pursuant to a pretrial agreement (PTA), of two
specifications of making a false official statement, in violation of Article 107,
                    United States v. Walton, No. ACM 39664


Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 907, and one specifica-
tion of wrongful use of cocaine on divers occasions, in violation of Article 112a,
UCMJ, 10 U.S.C. § 912a. 1 The military judge sentenced Appellant to a dismis-
sal, confinement for 60 days, and a reprimand. In accordance with the sentence
limitation in the PTA, the convening authority approved only 30 days of con-
finement but otherwise approved the sentence as adjudged.
   The sole issue raised by Appellant on appeal is whether the military judge
abused his discretion by excluding attachments to Appellant’s unsworn state-
ment. We also consider whether Appellant is entitled to relief due to facially
unreasonable appellate delay. We find no prejudicial error and affirm the find-
ings and sentence.

                                  I. BACKGROUND
    On or about 14 April 2018, Appellant, who was a cadet at the United States
Air Force Academy, snorted cocaine that had been provided to him by his room-
mate, Air Force Cadet (AFC) HV. Appellant ingested the cocaine while sitting
in AFC HV’s truck in Colorado Springs, Colorado. On 16 April 2018, Appellant
and AFC HV were both selected for a random urinalysis. Appellant’s urine
sample tested positive for benzoylecgnonine, the metabolite of cocaine. The
concentration of benzoylecgnonine in Appellant’s urine measured at 1,501
nanograms per milliliter (ng/mL), exceeding the Department of Defense cutoff
of 100 ng/mL. AFC HV also tested positive for benzoylecgnonine.
   During the weekend of 11–13 May 2018, Appellant traveled to Las Vegas,
Nevada, where he stayed with AFC KE and AFC BH at the residence of AFC
GS. Unaware of his positive urinalysis test result from April and believing that
he had avoided detection of his initial cocaine use, Appellant again ingested
cocaine on 11 May 2018. Appellant obtained this cocaine from an individual on
the Las Vegas strip and then snorted it in the bathroom of a bar.
    On 14 May 2018, after Appellant returned to the Air Force Academy, Ap-
pellant and AFC HV were contacted via text message by their cadet squadron
commander and told that they needed to meet with him. Appellant and AFC
HV then agreed to lie that they may have tested positive for cocaine because
they ate a cookie or candy received from an unknown man in Colorado Springs.
Later that same day, Appellant was interviewed by a special agent from the
Air Force Office of Special Investigations (AFOSI). After being informed of his
rights pursuant to Article 31, UCMJ, 10 U.S.C. § 831, Appellant waived his


1Unless otherwise noted, all references in this opinion to the Uniform Code of Military
Justice and Rules for Courts-Martial are to the Manual for Courts-Martial, United
States (2016 ed.).


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                      United States v. Walton, No. ACM 39664


rights and then told the agent the false story that he did not knowingly use
cocaine and may have tested positive because he had eaten a cookie given to
him by an unknown male on the street in Colorado Springs near Cowboys
Night Club.
    Pursuant to United States v. Bickel, 2 Appellant was subjected to a second
urinalysis on or about 15 May 2018, which resulted in another positive result
for cocaine. After receiving the results of this second urinalysis, AFOSI re-in-
terviewed Appellant on 30 May 2018. Again Appellant was advised of his rights
pursuant to Article 31, UCMJ, which he waived. Appellant then told security
forces investigator BB that there were no other cadets or military members
that he met or who accompanied him on his trip to Las Vegas. Appellant knew
this statement was false because three other cadets had accompanied him to
Las Vegas. Appellant was charged with making a false official statement for
this claim as well as for claiming he received the cookie from an unknown man.
    During presentencing proceedings at his court-martial, Appellant sought
to introduce a written unsworn statement with three documents attached: (1)
a seven-page legal opinion by the Administrative Law Directorate, Office of the
Air Force Judge Advocate General (OpJAGAF) 2018-3 (18 Apr. 2018), Cadet
Discharges, discussing recoupment laws pertaining to Air Force Academy ca-
dets involuntarily discharged for serious misconduct; (2) a four-page printout
entitled “Students with criminal convictions have limited eligibility for federal
student aid” from the Federal Student Aid, Office of the U.S. Department of
Education website; and (3) a two-page printout entitled “Federal Student Aid
at a Glance” dated 2018–2019, also from the Federal Student Aid, Office of the
U.S. Department of Education website. The trial counsel objected to the three
attachments and to one paragraph of Appellant’s written unsworn statement
in which Appellant discussed the possibility that the cost of his tuition for the
Air Force Academy would be recouped from him and the potential difficulty
Appellant would face in obtaining federal financial aid with a drug conviction.
The paragraph stated:
          While I know my parents are always there for me, they cannot
          be a financial safety net for me. I know that I will have to put
          myself through school if I ever want to complete my degree and
          pursue my dream of becoming an engineer. On its own, my fed-
          eral conviction will make getting a job to earn the money to both
          live and go to school difficult. Because I am now convicted of a
          federal drug offense, the Department of Education guidelines
          make clear my ability to get federal financial aid for school is
          also significantly jeopardized. I will have to work for every penny

2   

(C.M.A. 1990).


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                   United States v. Walton, No. ACM 39664


       to get by. I am also aware that, because I am a cadet, there is a
       possibility that the Air Force could recoup $50,000 for each year
       of my education and the opportunities offered to me by the Acad-
       emy—it could go well into six figures based on my two-and-a-
       half years here. I know this is a serious possibility because I have
       been briefed that JAA recommends recoupment for “serious mis-
       conduct”and the Secretary of the Air Force has to make the final
       determination. This has definitely made me realize the gravity
       of what I have done and I know I will have to work even harder
       to climb my way out and into the light of success.
    Referencing the decisions in United States v. Talkington, 

(C.A.A.F. 2014), and United States v. Grill, 

(C.A.A.F. 1998), the
military judge overruled the trial counsel’s objection to the paragraph in Ap-
pellant’s written unsworn statement. However, the military judge sustained
the objection to the three attachments. Relying on Rule for Courts-Martial
(R.C.M.) 1001 and United States v. Daniels, No. ACM 38371, 2014 CCA LEXIS
769 (A.F. Ct. Crim. App. 14 Oct. 2014) (per curiam) (unpub. op.), the military
judge ruled the three attachments were inadmissible because none were state-
ments of the Appellant and each referred to collateral consequences.
    Without the three attachments, Appellant’s written unsworn statement,
including the paragraph quoted above, was admitted as a defense exhibit. The
trial counsel then objected to the military judge considering any discussion of
the collateral consequences when deciding on a sentence for Appellant. The
military judge responded by stating that he would give the information “the
weight that it is due.”
    During his oral unsworn statement, without any further objection by the
trial counsel, Appellant also told the military judge:
       With the help of family, my girlfriend and her family I’m already
       on the path to achieve my dreams. The road ahead will not be
       easy, particularly with the financial obstacles of paying my own
       way. Student loans being in jeopardy because of my drug convic-
       tion. And the rest that I will be forced to pay the Air Force over
       $100,000 in recoupment.

                                II. DISCUSSION
A. Exclusion of Attachments to Unsworn Statement
   1. Law
   We review a military judge’s decision to admit or exclude sentencing evi-
dence for an abuse of discretion. United States v. Stephens, 

, 235


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                    United States v. Walton, No. ACM 39664


(C.A.A.F. 2009) (citing United States v. Manns, 

, 166 (C.A.A.F.
2000)). 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 princi-
ples to the facts is clearly unreasonable. United States v. Ellis, 

,
344 (C.A.A.F. 2010) (citing United States v. Mackie, 

, 199 (C.A.A.F.
2008)).
   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, 

, 424 (C.M.A. 1988) (citation omitted). “A collateral conse-
quence is ‘[a] penalty for committing a crime, in addition to the penalties in-
cluded in the criminal sentence.’” 

(alteration in orig-
inal) (internal quotation marks, footnote, and citation omitted).
   2. Analysis
    Appellant asserts that the military judge committed prejudicial error by
excluding the attachments to his written unsworn statement addressing the
possibility of recoupment of tuition costs and ineligibility for federal financial
aid. Appellant argues that by excluding the attachments, the military judge
curtailed his “nearly unrestricted rights” to make an unsworn statement, even
though Appellant was able to address the same information in both his written
and oral unsworn statements.
    Despite Appellant’s assertions to the contrary, the military judge did not
commit prejudicial error 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 Appel-
lant sought to attach to his unsworn statement are neither a statement by Ap-
pellant nor by counsel on his behalf. See, e.g., Daniels, unpub. op. at *15 (where
this court concluded “that the military judge did not abuse his discretion in
excluding a statement, not written by the appellant that contained otherwise-
inadmissible information from a collateral consequence of a court-martial con-
viction”).
    Moreover, consistent with R.C.M. 1001(c), the military judge did not pre-
clude Appellant from commenting on his concerns about the impact of the
court-martial on possible recoupment of the cost of his Air Force Academy ed-
ucation or his eligibility for student loans, which Appellant brought to the at-
tention of the military judge in both his written unsworn statement admitted
by the military judge as a defense exhibit and his oral unsworn statement. We
conclude that the military judge did not abuse his discretion by excluding the
documents attached to Appellant’s unsworn statement.


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                   United States v. Walton, No. ACM 39664


    Appellant further argues that potential impact of his sentence on recoup-
ment of his Air Force Academy tuition is akin to the impact on retirement ben-
efits addressed in Talkington, because recoupment is a consequence of the sen-
tence rather than the conviction. 

. We do not agree that the
deprivation of military retirement benefits resulting from a punitive discharge
addressed in Talkington is analogous to the speculative impact of a court-mar-
tial conviction or a punitive discharge on whether or not Appellant might later
be required to repay the cost of his Air Force Academy tuition or under what
circumstances Appellant may or may not be eligible for federal student loans.
Consequently, as the military judge correctly concluded, those issues consti-
tuted collateral matters. Again, we find that the military judge did not abuse
his discretion by excluding the documents attached to Appellant’s unsworn
statement.
    Even assuming arguendo that the military judge erred by excluding the
documents attached to Appellant’s unsworn statement, 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, 

, 384 (C.A.A.F. 2018) (quoting United States v. Sanders, 

,
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 Gov-
ernment’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.”

    We find that the balance of these four factors weighs in favor of the Gov-
ernment. The Government’s case was strong, supported by a stipulation of fact
and a guilty plea inquiry both of which described the facts and circumstances
of the offenses to which Appellant pleaded guilty, though the Defense’s case
also had strong points regarding Appellant’s efforts at rehabilitation. The ma-
teriality of the evidence was extremely limited because of the similar infor-
mation included in Appellant’s written and oral unsworn statements, and the
quality of the evidence was not really in question. Further, the trial defense
counsel, with Appellant’s explicit consent, asked the military judge to impose
only a dismissal in this case. We conclude that even if the military judge erred
by excluding the documents attached to Appellant’s written unsworn state-
ment, the error would not have had a substantial influence on the sentence
imposed.




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                    United States v. Walton, No. ACM 39664


B. Post-Trial Delay
   1. Additional Background
   Although Appellant does not raise post-trial delay as an error, we note that
Appellant’s case was initially docketed with this court on 4 April 2019, and
therefore, this opinion was not issued within 18 months.
   2. Law
    “We review de novo claims that an appellant has been denied the due pro-
cess right to a speedy post-trial review and appeal.” United States v. Moreno,

, 135 (C.A.A.F. 2006) (citing United States v. Rodriguez, 

, 246 (C.A.A.F. 2004); United States v. Cooper, 

, 58 (C.A.A.F.
2003)). In Moreno, the United States Court of Appeals for the Armed Forces
(CAAF) established a presumption of facially unreasonable delay when the
Court of Criminal Appeals does not render a decision within 18 months of dock-
eting.

Where there is such a delay, we examine the four factors set
forth in Barker v. Wingo, 

, 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 [to the appellant].”

(citing
United States v. Jones, 

, 83 (C.A.A.F. 2005); Toohey v. United States,

, 102 (C.A.A.F. 2004) (per curiam)). “No single factor is required for
finding a due process violation and the absence of a given factor will not pre-
vent such a finding.”

(citing 

).
    However, 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, 

, 362 (C.A.A.F. 2006). In Moreno,
the CAAF identified three types of cognizable prejudice for purposes of an Ap-
pellant’s due process right to timely post-trial review: (1) oppressive incarcer-
ation; (2) anxiety and concern; and (3) impairment of the appellant’s ability to
present a defense at a 

–39 (citations omitted).
   3. Analysis
    In this case, we find no oppressive incarceration because Appellant’s appeal
has not resulted in any reduction in his term of confinement. Similarly, where
the appeal does not result in a rehearing on findings or sentence, Appellant’s
ability to present a defense at a rehearing is not impaired.

As for
anxiety and concern, the CAAF has explained “the appropriate test for the mil-
itary justice system is to require an appellant to show particularized anxiety
or concern that is distinguishable from the normal anxiety experienced by pris-
oners awaiting an appellate decision.”

no such par-
ticularized anxiety or concern, and we discern none.



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                   United States v. Walton, No. ACM 39664


    In this case, the delay in issuing the court’s opinion exceeded the 18-month
Moreno standard by less than two weeks. We do not find the delay so egregious
as to adversely affect the perceived fairness and integrity of the military justice
system. See 

.
    Recognizing our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c),
we have also considered whether relief for excessive post-trial delay is appro-
priate even in the absence of a due process violation. See United States v. Tar-
dif, 

, 225 (C.A.A.F. 2002). After considering the factors enumerated
in United States v. Gay, 

, 744 (A.F. Ct. Crim. App. 2015), aff’d, 

(C.A.A.F. 2016), we conclude it is not.

                                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




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