Air Force Court of Criminal Appeals

United States v. Simmons. ​His third appearance brings him some sentence relief.

An officer panel originally convicted of four sexual assaults of a child, extortion, and producing CP. He was sentenced to 12 years, TF, RiR, and a DD in 2017.

On his first look at AFCCA, the case was returned for posttrial errors.

On reappearance, the AFCCA affirmed 11 years, 11 months, and 20 days confinement because of posttrial delay.

CAAF set aside the finding of guilty for extortion in United States v. Simmons, __ M.J. ___,  2022 CAAF LEXIS 205 (C.A.A.F. 2022).

Appellant timely appealed the decision of the CCA and this Court granted review of the following issue:

     Whether the military judge erred in allowing the Government to make a major change to      a specification, over defense objection—almost tripling the charged time frame—after the      complaining witness’s testimony did not support the offense as originally charged and the      prosecution had rested its case. United States v. Simmons, 81 M.J. 232 (C.A.A.F. 2021).

We answer the granted issue in the affirmative. Specifically, we hold that under the totality of the circumstances presented here, enlarging the charged time frame of one of the offenses by 279 days—after arraignment and over defense objection—was “likely to mislead the accused as to the offenses charged.” Rules for Courts-Martial (R.C.M.) 603(a). This amendment to the charge sheet thus constituted a “[m]ajor change” which the Government was not authorized to make without withdrawing, amending, and preferring the specification anew. R.C.M. 603(a), (d). Because the Government failed to take these required steps, the decision of the CCA is reversed as to the Specification of Charge II and as to the sentence.

The defense vigorously objected to the Government’s motion, arguing that “during the government’s case-in-chief, they failed to elicit any testimony that the extortion occurred during [the] time period [originally charged] . . . . And so the amendment here, this major change here, is made to cure a defect in their presentation of the evidence.” The defense further stated: “Now our particular concern here, one, is of a notice type nature, particularly given that the government is moving to amend the charge sheet, . . . basically [just] before instructions [begin].” The civilian defense counsel also argued that “the dumping [of] 250 pages of text messages on me the night before trial, . . . hardly constitutes notice,” and that he might have cross-examined the complaining witness differently if the Government had acted in a timely manner. In addition, the defense noted that by enlarging the charged time frame, the Government was now alleging that Appellant extorted CL when she was still a minor, and although age is not an element of the offense, her young age made the alleged offense “absolutely more serious” and could result in “an enhanced sentence.” For these reasons, civilian defense counsel concluded, the Government’s proposed amendment to the charge sheet was “highly prejudicial.”

Simmons, Slip op. at 4. The AFCCA then reassessed the sentence and affirmed confinement of nine years, 11 months, and 20 days.