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

                               No. ACM 39732
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                          Blair V. BAUER
          Technical Sergeant (E-6), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 25 January 2021
                          ________________________

Military Judge: L. Martin Powell.
Approved sentence: Dishonorable discharge, confinement for 4 years,
and reduction to E-1. Sentence adjudged 15 February 2019 by GCM con-
vened at Francis E. Warren Air Force Base, Wyoming.
For Appellant: Major Benjamin H. DeYoung, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Zachary
T. West, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Chief Judge J. JOHNSON delivered the opinion of the court, in which
Senior Judge POSCH and Judge KEY joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

J. JOHNSON, Chief Judge:
    A general court-martial composed of a military judge alone convicted Ap-
pellant, contrary to his pleas, of one specification of wrongful possession of
child pornography in violation of Article 134, Uniform Code of Military Justice
                       United States v. Bauer, No. ACM 39732


(UCMJ), 10 U.S.C. § 934. 1 The military judge sentenced Appellant to a dishon-
orable discharge, confinement for four years, and reduction to the grade of E-1.
The convening authority approved the adjudged sentence.
    Appellant raises four issues 2 on appeal: (1) whether the evidence is legally
and factually sufficient to support his conviction; (2) whether the military
judge erred by denying the Defense’s motion to suppress the results of a search
of Appellant’s electronic devices; (3) whether Appellant’s trial defense counsel
was ineffective by failing to include a revocation of consent to search in her
notice of representation; and (4) whether Appellant is entitled to relief for fa-
cially unreasonable post-trial delay. 3 We find no error that materially preju-
diced Appellant’s substantial rights, and we affirm the findings and sentence.

                                    I. BACKGROUND
    On 13 January 2017, the Air Force Office of Special Investigations (AFOSI)
detachment at Francis E. Warren Air Force Base (AFB), Wyoming, received a
tip from the National Center for Missing and Exploited Children (NCMEC)
that images of suspected child pornography had been uploaded from a phone
with a number belonging to Appellant. On 27 January 2017, AFOSI agents
interviewed Appellant’s then-spouse, Staff Sergeant (SSgt) AP. 4 SSgt AP told
the agents that Appellant owned a cell phone, a laptop computer, a tablet, and
a desktop computer. SSgt AP told the agents she and Appellant both used the
desktop computer, but only Appellant used the other devices. SSgt AP gave her
consent for the agents to search for electronic devices in the residence she
shared with Appellant. SSgt AP went with the agents to the residence.
    On the same day, two AFOSI agents visited the base Security Forces inves-
tigations section, where Appellant worked as an investigator. The agents,
whom Appellant knew, asked him to come to the AFOSI detachment to assist
them with a case. At the detachment, the agents read Appellant his Article 31,
UCMJ, 10 U.S.C. § 831, rights and advised him he was suspected of possession
of child pornography. Appellant requested legal counsel. However, when
asked, Appellant consented orally and in writing to the seizure and search of
his cell phone, laptop, and tablet. Appellant had his cell phone with him, but


1All references in this opinion to the Uniform Code of Military Justice and Military
Rules of Evidence are to the Manual for Courts-Martial, United States (2016 ed.).
2   We have slightly reordered the issues.
3Although not raised by Appellant, we also consider whether Appellant is entitled to
relief for facially unreasonable appellate delay.
4During their marriage, SSgt AP went by a different name. SSgt AP and Appellant
divorced before Appellant’s trial.


                                             2
                   United States v. Bauer, No. ACM 39732


told the agents his laptop and tablet were at his residence. At the agents’ re-
quest, he provided them a limited description of his laptop and tablet. The
agents took Appellant’s phone and extracted data from it on the same day, 27
January 2017, before returning it to Appellant.
    Meanwhile, at Appellant’s residence, SSgt AP identified Appellant’s laptop
and tablet for the agents there. The agents at the residence took photographs
of the devices and provided them to the agents who were with Appellant at the
detachment. Those agents showed the photographs to Appellant and asked if
the devices were his, and Appellant confirmed that they were. The agents
seized the laptop and tablet pursuant to Appellant’s written consent, and
seized the desktop computer pursuant to SSgt AP’s consent.
    On 30 January 2017, the agents examined the contents of Appellant’s lap-
top and tablet and the data extracted from Appellant’s phone. The search of
the latter revealed approximately 100 images of suspected child pornography.
The following day, 31 January 2017, Appellant through counsel revoked his
prior consent to search his property.
    However, the discovery of suspected child pornography on Appellant’s
phone led the agents to seek and obtain a search warrant for Appellant’s resi-
dence. On 7 February 2017, the agents seized two external hard drives from
Appellant’s residence. Subsequent examination of the cell phone, laptop, and
two hard drives revealed the presence of over 15,000 images—photographs and
videos—of suspected child pornography. Appellant was subsequently charged
with possession of child pornography found in unallocated space across the four
devices. The Government identified 4,028 images of alleged child pornography
for which it sought to convict Appellant. The military judge found Appellant
guilty of the Charge and its Specification. At the Defense’s request, the mili-
tary judge made special findings in which he listed the images with respect to
which he found Appellant not guilty. The military judge found Appellant guilty
with respect to 3,585 of the images and not guilty with respect to 443 images.

                                II. DISCUSSION
A. Legal and Factual Sufficiency
   1. Law
    We review issues of legal and factual sufficiency de novo. United States v.
Washington, 

, 399 (C.A.A.F. 2002) (citation omitted). Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at tri-
al. United States v. Dykes, 

, 272 (C.M.A. 1993) (citations omitted).
    “The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have


                                       3
                   United States v. Bauer, No. ACM 39732


found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 

, 297–98 (C.A.A.F. 2018) (citation omitted). “[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, 

, 134 (C.A.A.F. 2001) (citations omitted). As a result,
“[t]he standard for legal sufficiency involves a very low threshold to sustain a
conviction.” United States v. King, 

, 221 (C.A.A.F. 2019) (alteration
in original) (citation 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 ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 

, 325 (C.M.A. 1987). “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 determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.’” United
States v. Wheeler, 

, 568 (A.F. Ct. Crim. App. 2017) (alteration in
original) (quoting 

), aff’d, 

(C.A.A.F.
2018).
    In order to convict Appellant of the charged offense of possession of child
pornography in violation of Article 134, UCMJ, the Government was required
to prove: (1) that at or near Cheyenne, Wyoming, between on or about 9 De-
cember 2014 and on or about 7 February 2017, Appellant knowingly and
wrongfully possessed child pornography, specifically one or more digital im-
ages of a minor engaging in sexually explicit conduct; and (2) that under the
circumstances Appellant’s conduct was of a nature to bring discredit upon the
armed forces. See Manual for Courts-Martial, United States (2016 ed.) (MCM),
pt. IV, ¶ 68b.b.(1). “Child pornography” is defined as “material that contains
either an obscene visual depiction of a minor engaging in sexually explicit con-
duct or a visual depiction of an actual minor engaging in sexually explicit con-
duct.” MCM, pt. IV, ¶ 68b.c.(1). “Sexually explicit conduct” includes “actual or
simulated” sexual intercourse, sodomy, bestiality, masturbation, sadistic or
masochistic abuse, or the “lascivious exhibition of the genitals or pubic area of
any person.” MCM, pt. IV, ¶ 68b.c.(7).
   2. Analysis
    At trial, the Government introduced compelling evidence of Appellant’s
guilt. The Government called as witnesses SSgt AP (Appellant’s spouse at the
time); AFOSI agents involved in obtaining Appellant’s electronic devices and
extracting and examining data from his phone; and Ms. TK, a forensic exam-
iner at the Defense Cyber Crime Center’s Cyber Forensic Laboratory



                                       4
                    United States v. Bauer, No. ACM 39732


(DC3/CFL), who testified as an expert in digital forensics regarding her analy-
sis of Appellant’s digital devices. Ms. TK’s testimony in particular, which lasted
well over one full day of the trial, was very detailed and technical. However,
an extended discussion of the evidence is not required here; a brief summary
of key aspects of the Government’s proof will suffice.
    Of more than 15,000 images of suspected child pornography found on Ap-
pellant’s devices, the Government selected 4,028 images to offer into evidence,
copies of which it introduced on an external hard drive as Prosecution Exhibit
1. As noted above, the military judge provided special findings by which he
found Appellant guilty with respect to 3,585 of the charged images. 5 Generally
speaking, the photographs and videos for which Appellant was convicted evi-
dently depict young children well under the age of 18 years. Many of the images
depict children posed to display their genitals; others depict children engaged
in sexual acts with adults or other apparent minors, and other forms of “sex-
ually explicit conduct.” Ms. TK found over 400 images that had been identified
by NCMEC to be confirmed depictions of child pornography. We conclude the
material for which Appellant was convicted was in fact child pornography.
    The images were located on multiple devices, specifically Appellant’s
phone, his laptop, and the two hard drives. Some particular images were lo-
cated on multiple devices. The presence of child pornography on four different
devices, and the presence of the same images on multiple devices, suggests the
user had knowledge, control, and an intent to retain possession of the images.
All of the charged images were recovered from “unallocated space” on the de-
vices. Ms. TK explained that data files found in unallocated space—that is,
space available to be overwritten by additional data—were “active at one point
on the drive” before being deleted.
    The record discloses little basis to conclude that anyone other than Appel-
lant exercised control over these devices. The other residents in Appellant’s
home were SSgt AP and her young son, both of whom moved in during October
2016; she testified the only electronic device she shared with Appellant was
the desktop computer, and none of the images in Prosecution Exhibit 1 were
from that device. The evidence indicated that child pornography appeared on
the devices prior to October 2016. At trial and on appeal, Appellant has not
attempted to implicate SSgt AP or otherwise meaningfully challenged that he
exercised exclusive control over his phone, laptop, and external hard drives
where the images in Prosecution Exhibit 1 were found.


5Some of the images are duplicates, representing copies of the same files located on
different devices.




                                         5
                      United States v. Bauer, No. ACM 39732


    Other evidence tending to support that Appellant knowingly possessed
child pornography included, inter alia, dozens of Kik 6 contacts under Appel-
lant’s desktop computer profile with user names suggestive of shared interest
in child pornography; evidence of user-created folders with titles including
“PTHC13year-old,” “little Lolitas,” and names suggesting several categories of
incest, including parent/child; and other forensic evidence tending to show Ap-
pellant opened video files which, although the files themselves were not recov-
ered from the devices, featured names suggestive of child pornography.
    Appellant contends the Government failed to prove he knowingly possessed
child pornography. He notes that DC3/DCFL found approximately 437,000 to-
tal images on his devices, including a large quantity of legal pornography. He
contends that evidence that a file was accessed, saved, or moved does not nec-
essarily prove the user knew what was on the file. We are not persuaded. We
find the evidence adduced convincingly demonstrates Appellant knowingly as
well as wrongfully possessed child pornography, as the military judge found.
    Accordingly, drawing every reasonable inference from the evidence of rec-
ord in favor of the Government, we conclude the evidence was legally sufficient
to support Appellant’s conviction beyond a reasonable doubt. See 

–98. Additionally, having weighed 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. See 

.
B. Defense Motion to Suppress
      1. Additional Background
    Before trial, the Defense moved to suppress evidence obtained from Appel-
lant’s laptop and the two external hard drives. The Defense contended that this
evidence was obtained in violation of the Fifth Amendment 7 and Article 31,
UCMJ, because AFOSI agents asked Appellant to confirm his ownership of the
laptop and tablet after Appellant had invoked his rights to counsel and to re-
main silent. During the motion hearing, trial defense counsel expanded the
objection to include Appellant’s oral statements describing the devices and
identifying pictures of them. The Defense did not move to suppress the data
the agents extracted from Appellant’s phone with his consent. The Government
opposed the motion.



6 At trial, Ms. TK described Kik as “a social media third-party application in which
people can search for like interests,” and agreed that it was “an application that users
can share files across.”
7   U.S. CONST. amend. V.


                                           6
                   United States v. Bauer, No. ACM 39732


    After receiving evidence and hearing argument on the motion, the military
judge issued a written ruling. The military judge found that Appellant was in
AFOSI custody on 27 January 2017 when he invoked his right to counsel and
gave his consent to search. The military judge further found the agents did not
violate Appellant’s Fifth Amendment or Article 31, UCMJ, rights by asking for
his consent to search his phone, laptop, and tablet after Appellant invoked his
right to counsel. However, relying on United States v. Burns, 

, 320
(C.M.A. 1991), the military judge concluded that the agents did violate Appel-
lant’s Fifth Amendment and Article 31 rights when they asked him to describe
his laptop and tablet, and asked him to identify images of the devices. He ex-
plained that at the time the agents were still in the process of attempting to
identify Appellant’s devices, and their requests that Appellant identify the de-
vices were requests that Appellant potentially incriminate himself by indicat-
ing ownership. Accordingly, the military judge granted the Defense’s motion
with respect to Appellant’s statements describing and identifying the devices.
   However, the military judge denied the motion to suppress with respect to
the searches of the devices themselves. He found the laptop and tablet were
“not obtained by use of [Appellant’s] statements describing those items,” and
the agents would have obtained and identified them “with the assistance of
[Appellant’s] wife even if the statements had not been made.”
   2. Law
    We review a military judge’s ruling on a motion to suppress evidence for an
abuse of discretion. United States v. Freeman, 

, 453 (C.A.A.F. 2008)
(citing United States v. Ayala, 

, 298 (C.A.A.F. 1995)). The military
judge’s findings of fact are reviewed for clear error, but his conclusions of law
are reviewed de novo. United States v. Keefauver, 

, 233 (C.A.A.F.
2015) (citation omitted). “[T]he abuse of discretion standard of review recog-
nizes that a judge has a range of choices and will not be reversed so long as the
decision remains within that range.” United States v. Gore, 

, 187
(C.A.A.F. 2004) (citation omitted). However, “[a] military judge abuses his dis-
cretion when his findings of fact are clearly erroneous, when he is incorrect
about the applicable law, or when he improperly applies the law.” United
States v. Roberts, 

, 326 (C.A.A.F. 2004). “In reviewing a ruling on a
motion to suppress, we consider the evidence in the light most favorable to the
prevailing party.” United States v. Cowgill, 

, 390 (C.A.A.F. 2010)
(citation omitted).
   Servicemembers are generally entitled to the protections of the Fifth
Amendment. United States v. Tempia, 

, 253–55 (C.M.A. 1967).
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself . . . .” U.S. CONST. amend. V. Once
a suspect in custody has “expressed his desire to deal with the police only

                                       7
                    United States v. Bauer, No. ACM 39732


through counsel, [he] is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused himself ini-
tiates further communication . . . .” Edwards v. Arizona, 

, 484–85
(1981); see Mil. R. Evid. 305(e)(3).
    “The protections afforded to servicemembers under Article 31(b), UCMJ,
[10 U.S.C. § 831(b),] are in many respects broader than the rights afforded . . .
under the Fifth Amendment to the Constitution.” United States v. Evans, 

, 303 (C.A.A.F. 2016) (citations omitted). Article 31(b), UCMJ, pro-
vides:
       No person subject to this chapter may interrogate, or request
       any statement from an accused or a person suspected of an of-
       fense without first informing him of the nature of the accusation
       and advising him that he does not have to make any statement
       regarding the offense of which he is accused or suspected and
       that any statement made by him may be used as evidence
       against him in a trial by court-martial.
    A statement is “involuntary” if it is “obtained in violation of the self-incrim-
ination privilege or Due Process Clause of the Fifth Amendment to the United
States Constitution, Article 31, or through the use of coercion, unlawful influ-
ence, or unlawful inducement.” Mil. R. Evid. 304(a)(1)(A); see also Article 31(d),
UCMJ, 10 U.S.C. § 831(d) (“No statement obtained from any person in viola-
tion of [Article 31, UCMJ], or through the use of coercion, unlawful influence,
or unlawful inducement may be received in evidence against him in a trial by
court-martial.”). With limited exceptions, an involuntary statement of an ac-
cused and any evidence derived therefrom is inadmissible at trial, provided the
defense makes a timely motion or objection. Mil. R. Evid. 304(a).
    A request by investigators for consent to search after a suspect has invoked
the right to counsel or to remain silent does not infringe upon the Fifth Amend-
ment or Article 31, UCMJ, “because such requests are not interrogations and
the consent given is ordinarily not a statement.” United States v. Robinson, 

, 306 (C.A.A.F. 2018) (quoting United States v. Frazier, 

,
137 (C.M.A. 1992)). However, a “distinction must be made between granting
consent to search property that already has been identified by law-enforcement
agents and having a suspect identify property for those agents.” 

. An investigator may not ask a suspect to identify his property after the
suspect has requested counsel.

obtained as a result of an unlawful search or seizure
may be used when the evidence would have been obtained even if such unlaw-
ful search or seizure had not been made.” Mil. R. Evid. 311(c)(2). As the United
States Court of Appeals for the Armed Forces (CAAF) has explained:


                                         8
                   United States v. Bauer, No. ACM 39732


       The doctrine of inevitable discovery allows for the admission of
       illegally obtained evidence when the government “demon-
       strate[s] by a preponderance of the evidence that when the al-
       leged illegality occurred, the government agents possessed, or
       were actively pursuing, evidence or leads that would have inev-
       itably led to the discovery of the evidence in a lawful manner.”
United States v. Eppes, 

, 347 (C.A.A.F. 2018) (alteration in original)
(quoting United States v. Wicks, 

, 103 (C.A.A.F. 2014)).
   3. Analysis
    We conclude the military judge did not abuse his discretion by denying the
defense motion to suppress evidence from the laptop and hard drives. His con-
clusion that the Government would have inevitably discovered the evidence
was well supported by the record. With the lawful assistance of SSgt AP, the
agents had already located Appellant’s laptop and tablet independent of Ap-
pellant’s descriptions and subsequent photo identification. Moreover, it is un-
disputed that Appellant voluntarily consented to the AFOSI searching these
devices. In addition, the AFOSI’s extraction of data from Appellant’s phone
was unaffected by the Fifth Amendment and Article 31 violations. This extrac-
tion led to the discovery of approximately 100 images of suspected child por-
nography, which in turn led to the agents obtaining a search warrant and find-
ing and seizing additional devices at Appellant’s residence, specifically the ex-
ternal hard drives. Accordingly, the military judge did not abuse his discretion
by finding a preponderance of the evidence indicated the AFOSI already “pos-
sessed, or were actively pursuing, evidence or leads that would have inevitably
led to the discovery of the evidence in a lawful manner.” 

(citation omitted).
C. Ineffective Assistance of Counsel
   1. Additional Background
    On 30 January 2017, the same day the AFOSI examined the contents of the
cell phone extraction, laptop, and tablet that had been obtained with Appel-
lant’s consent, the AFOSI detachment received a notice of representation of
Appellant from Major (Maj) SM, the area defense counsel at the United States
Air Force Academy in Colorado. The notice of representation did not include a
revocation of Appellant’s prior consent to seize and search his devices. The fol-
lowing day, 31 January 2017, Maj SM delivered to the AFOSI a revocation of
consent to search on Appellant’s behalf.




                                       9
                     United States v. Bauer, No. ACM 39732


    At the Government’s request, this court ordered and received a sworn dec-
laration from Maj SM. 8 The declaration explained that on 30 January 2017,
Maj SM received a client referral for Appellant from the area defense counsel
at Francis E. Warren AFB. Maj SM spoke with Appellant and formed an attor-
ney-client relationship with him the same day. During the conversation, Ap-
pellant provided a general explanation of the situation, including the fact that
he had provided consent for the AFOSI to search his phone, laptop, and tablet.
According to Maj SM, after Appellant explained the situation,
        I informed [Appellant] that our first priority would be to revoke
        his consent to search his property. He stated that he did not
        want to do so. He explained to me that as a Security Forces In-
        vestigator, he fully understood what he had agreed to . . . . He
        stated he wanted the agents to search his electronics. He repeat-
        edly stated he “didn’t do anything wrong and had nothing to
        hide.” I explained the risk of that position even if he was com-
        pletely innocent of the allegations. . . . No tact [sic] I took swayed
        him. We discussed the topic at length and I repeatedly provided
        the advice that he should revoke consent immediately. He main-
        tained the position that he did not want me to revoke consent for
        the search on his behalf.
    Maj SM’s declaration further explained that either during this consultation
or shortly thereafter, she sent a message to her supervising senior defense
counsel explaining the situation, and asking if she should have Appellant doc-
ument in writing this decision to not revoke consent, contrary to her advice.
Maj SM attached a copy of this email and the senior defense counsel’s response


8 In United States v. Jessie, the CAAF explained the general rule that the Courts of
Criminal Appeals (CCAs) “may not consider anything outside of the ‘entire record’
when reviewing a sentence under Article 66(c), UCMJ[, 10 U.S.C. § 866(c)].” 

, 441 (C.A.A.F. 2020) (quoting United States v. Fagnan, 

(C.M.A.
1961)) (additional citation omitted). That Maj SM revoked Appellant’s consent on 31
January 2017 rather than in her initial notice of representation on 30 January 2017 is
evident in the “entire record,” and therefore properly before us for review. See

The CAAF also recognized that “some [of its] precedents have allowed the CCAs
to supplement the record when deciding issues that are raised by materials in the rec-
ord,” specifically with affidavits or hearings ordered pursuant to United States v.
DuBay, 

(C.M.A. 1967) (per curiam). 

. In Jessie, the
CAAF declined to disturb this line of precedent.

Accordingly, we understand
Jessie to permit our review of Maj SM’s declaration. See

(citation omitted)
(noting the CAAF has allowed the CCAs “to accept affidavits or order a DuBay hearing
when necessary for resolving claims of ineffective assistance of trial defense counsel”).




                                           10
                      United States v. Bauer, No. ACM 39732


to her declaration. Maj SM told Appellant she would send Appellant a draft
memorandum to document his decision not to revoke consent, and Appellant
agreed to print it out and sign it the following day. Maj SM acknowledged she
“removed the revocation of consent language typically contained in [her] notice
of representation” that she sent to the AFOSI.
    The following morning, 31 January 2017, Appellant called Maj SM and told
her that he had thought about her advice and decided he did want to revoke
his consent. Maj SM “immediately” sent a revocation of consent to the AFOSI
detachment.
    Appellant has not provided a declaration that contradicts Maj SM’s account
or otherwise challenged the accuracy of her declaration.
      2. Law
    The Sixth Amendment 9 guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 

, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard in Strickland v.
Washington, 

, 687 (1984), and begin with the presumption of com-
petence announced in United States v. Cronic, 

, 658 (1984). See

(citing United States v. Grigoruk, 

, 315
(C.A.A.F. 2000)). We will not second-guess reasonable strategic or tactical de-
cisions by trial defense counsel. United States v. Mazza, 

, 475
(C.A.A.F. 2009) (quoting United States v. Anderson, 

, 202 (C.A.A.F.
2001)). We review allegations of ineffective assistance de novo. United States
v. Gooch, 

, 362 (C.A.A.F. 2011) (citing 

).
    We utilize the following three-part test to determine whether the presump-
tion of competence has been overcome:
         1. Are appellant’s allegations true; if so, “is there a reasonable
         explanation for counsel’s actions”?
         2. If the allegations are true, did defense counsel’s level of advo-
         cacy “fall measurably below the performance . . . [ordinarily ex-
         pected] of fallible lawyers”?
         3. If defense counsel was ineffective, is there “a reasonable prob-
         ability that, absent the errors,” there would have been a differ-
         ent result?

v. Polk, 

, 153 (C.M.A. 1991)). The burden
is on the appellant to demonstrate both deficient performance and prejudice.
United States v. Datavs, 

, 424 (C.A.A.F. 2012) (citation omitted).


9   U.S. CONST. amend. VI.


                                         11
                    United States v. Bauer, No. ACM 39732


   3. Analysis
    Appellant contends Maj SM provided ineffective assistance of counsel by
failing to include a revocation of consent in her initial notice of representation
on 30 January 2017. He contends the inclusion of such a revocation is “stand-
ard practice,” and there is “no strategic or tactical reason” not to include such
a revocation. However, Appellant has failed to carry his burden to demonstrate
either deficient performance or prejudice.
     We find there was a reasonable explanation for Maj SM to not revoke Ap-
pellant’s consent, and the fact that she did not revoke it was not measurably
below the performance expected of defense counsel. See 

.
Maj SM’s declaration indicates that it was in fact her usual practice to revoke
prior consent to search when delivering notice of representation of a client.
Moreover, it is evident Maj SM would agree with Appellant’s present assertion
on appeal that there was no strategic or tactical reason not to revoke consent—
which is exactly why revoking it was her “first priority” and why she strongly
advised Appellant to do so. Appellant’s own specific insistence, contrary to Maj
SM’s advice, was the reason why she did not initially include the revocation.
As soon as Appellant informed Maj SM that he had changed his mind, she sent
the revocation to the AFOSI. We decline to hold that a trial defense counsel’s
failure to act contrary to the express and fully informed desires of her client,
albeit contrary to the counsel’s advice, was constitutionally deficient perfor-
mance under Strickland.
    In addition, Appellant has failed to demonstrate a reasonable probability
of a different result. The record is unclear whether AFOSI agents searched
Appellant’s laptop, tablet, and data obtained from Appellant’s phone before or
after Maj SM sent the notice of representation on 30 January 2017. However,
the AFOSI copied the data on Appellant’s phone on 27 January 2017, indisput-
ably during the period of Appellant’s consent, before returning the phone to
Appellant. Unlike the phone itself, the copied data the AFOSI created belonged
to the Government, not Appellant, and Appellant had no reasonable expecta-
tion of privacy in it with respect to the AFOSI. See United States v. Lutcza, 

, 703 (A.F. Ct. Crim. App. 2017). Therefore, the AFOSI’s right to
search that data would have been unaffected by revocation of consent. The dis-
covery of apparent child pornography on the data extracted from Appellant’s
phone led the agents to seek and obtain a search warrant for Appellant’s resi-
dence, where additional media containing child pornography was located and
seized, and to retain custody of the laptop and tablet pursuant to probable
cause. Accordingly, we are not persuaded the outcome of the case would have
been different had Maj SM included the revocation of consent in her initial
notice of representation.



                                       12
                    United States v. Bauer, No. ACM 39732


D. Post-Trial and Appellate Delay
   Appellant’s court-martial concluded on 15 February 2019. The convening
authority took action 137 days later, on 2 July 2019. Appellant’s case was dock-
eted with this court on 16 July 2019. This court is issuing its opinion 18 months
and 9 days after docketing.
    “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) (citations omitted). The 137 days that elapsed
between sentencing and action exceeded the 120-day threshold for a facially
unreasonable post-trial delay the CAAF established in 

.
Similarly, the delay between docketing at this court and the issuance of this
opinion exceeds Moreno’s 18-month threshold for a facially unreasonable ap-
pellate delay.

considered the four factors the CAAF
identified in Moreno to assess whether Appellant’s due process right to timely
post-trial and appellate review has been violated by either delay: “(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.”

(citing
United States v. Jones, 

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

, 102 (C.A.A.F. 2004) (per curiam)).
    However, the CAAF has held that where there is no qualifying prejudice
from the delay, there is no due process violation unless the delay is so egregious
as to “adversely affect the public’s perception of the fairness and integrity of
the military justice system.” United States v. Toohey, 

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

–
39 (citations omitted). Where the appellant does not prevail on the substantive
grounds of his appeal, as in this case, there is no oppressive incarceration.

Similarly, where an appellant’s substantive appeal fails, his ability to
present a defense at a rehearing is not impaired.

With regard to
anxiety and concern, “the appropriate test for the military justice system is to
require an appellant to show particularized anxiety or concern that is distin-
guishable from the normal anxiety experienced by prisoners awaiting an ap-
pellate decision.”

no showing of such particularized
anxiety or concern with respect to either of the delays in question, and we per-
ceive none.
   Accordingly, we consider whether the delays in this case were so egregious
as to adversely affect the public’s perception of the military justice system.

. We conclude they were not.



                                       13
                      United States v. Bauer, No. ACM 39732


    With respect to the delay between Appellant’s trial and the convening au-
thority’s action, the Government has provided a sworn declaration from Cap-
tain (Capt) ET, the chief of military justice at the wing legal office at Francis
E. Warren AFB, who provided a rough timeline for the post-trial processing of
Appellant’s case. 10 The timeline, together with the court reporter chronolo-
gies, 11 indicate that although the initial draft of the transcript was completed
and record of trial initially assembled by early April 2019, a further month
elapsed before counsel completed their review of the transcript. In late May
2019, the record was sent from the wing legal office to the general court-martial
convening authority’s legal office—located on the same base—where “substan-
tial errors” requiring correction were found in the transcript. 12 Ultimately, the
staff judge advocate’s recommendation (SJAR) and record were not served
upon Appellant and trial defense counsel until mid-June 2019; the Defense
timely submitted clemency matters to the convening authority on 27 June
2019; and the staff judge advocate signed the addendum to the SJAR on 1 July
2019, the day before convening authority action. We acknowledge the record
was of substantial length, including to 1,067 pages of transcript and 12 total
volumes, and that the wing legal office relied on court reporters stationed at
other bases. Nevertheless, the post-trial process illustrated in the record is not
a model of efficiency, and it is unclear why certain portions of the process—
such as review by counsel—took as long as they did. Yet, in the absence of any
particularized prejudice to Appellant, we find the delay was not so egregious
as to impugn the fairness and integrity of the military justice system.




10See 

–44 (permitting consideration of declarations from outside
the record of trial necessary to resolve issues raised by materials in the record of trial).
11 Neither Appellant nor the Government addressed whether these chronologies are
part of the “record” as defined in R.C.M. 1103(b)(2) or are “matters attached to the
record”—also referred to as “allied papers”—under R.C.M. 1103(b)(3). See 

–41. We note Air Force Manual 51-203, Records of Trial, Atch. 2 ¶ 3 (4 Sep.
2018), calls for the inclusion of a court reporter chronology in the record of trial, and
Air Force Instruction 51-201, Administration of Military Justice, ¶ A11.2.2 (18 Jan.
2019), requires the creation of a “chronology or similar documentation” and its inclu-
sion in the record of trial “[i]f more than 120 days has elapsed between sentence and
convening authority action.” Appellant cites to the court reporter chronologies in his
assignments of error, to which the Government has raised no objection. Accordingly,
we consider these documents in our analysis. Cf. United States v. Stanton, ___ M.J.
___, No. 19-0449, 2021 CAAF LEXIS ___, at *___ n.2 (C.A.A.F. 13 Jan. 2021) (consid-
ering discharge request and action upon it without deciding whether they were part of
the “entire record” because parties did not object).
12In this regard, we note that the early portion of the transcript, even in its final “cor-
rected” version, contains numerous obvious errors.


                                            14
                   United States v. Bauer, No. ACM 39732


    With regard to appellate delay, we note this court has issued its opinion
within 9 days of the 18-month Moreno standard. Appellant filed his initial as-
signments of error on 12 March 2020, after seeking and being granted five en-
largements of time over the Government’s opposition. The Government sub-
mitted its answer on 1 May 2020, after seeking to compel Maj SM’s declaration
to respond to Appellant’s allegation of ineffective assistance and requesting
one enlargement of time. Appellant submitted his reply brief on 8 May 2020.
We again note the transcript and record of trial are large and include a signif-
icant amount of sealed material, including thousands of contraband photos and
videos. In the absence of any particularized prejudice to Appellant, we find the
delay did not violate Appellant’s right to due process.
    Finally, 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
appropriate in this case even in the absence of a due process violation. See
United States v. Tardif, 

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

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

(C.A.A.F. 2016), we conclude no such relief is
appropriate.

                               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




                                       15