In sum, the question before us is not whether we think it is more likely that appellant perished in the mountains or voluntarily absented himself from his trial. Rather, we can only provide relief if we find that the military judge's ruling constitutes an abuse of discretion. See Gore, 60 M.J. at 187 ("[T]he abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.") (citation omitted). As such, based on our review of the entire record and for all of the reasons stated above, we conclude that the military judge did not abuse his discretion in: (1) finding that the government met its burden to prove by a 
preponderance of the evidence that appellant's failure to appear was voluntary; (2) finding that the defense failed to refute the inference that his absence was voluntary; and (3) proceeding with the trial in absentia. 

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.”

While standing duty in his squadron’s ready room, Appellant engaged in a sexually explicit text message conversation with Ms. Charles, a former high school classmate of his. During their exchange, Ms. Charles disclosed to Appellant that her ten-year-old daughter, Miss Bravo, was in the bed with her, and sent Appellant a photo of Miss Bravo, who was lying down, facing away from Ms. Charles. She told Appellant she intended to masturbate once her daughter fell asleep. Appellant responded that he was sexually aroused by the thought of Ms. Charles masturbating in the bed with her daughter and encouraged Ms. Charles to “do it anyway,” even though Miss Bravo was not yet asleep.

And events developed--etc., etc., etc.

​On 29 January 2022, Petitioner requested this court grant him extraordinary relief in what he styled as a “Motion for Compassionate Release and Reduction in Sentence,” pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). This court received, by mail, Petitioner’s request on 2 March 2022, and docketed his petition on 11 March 2022; the Court did not order briefs by the Government or Petitioner in response. We conclude we do not have jurisdiction to adjudicate Petitioner’s request and deny the petition. 

On 15 April 2021, Petitioner requested that the Federal Bureau of Prisons (BOP) make a motion on his behalf for a sentence reduction pursuant to the “extraordinary or compelling circumstances element codified in 18 U.S.C. § 3582(c)(1)(A)(i).” Petitioner argued he was a good candidate for compassionate release based on (1) the coronavirus disease 2019 (COVID-19) pandemic; (2) his age at the time his crimes were committed; (3) his lengthy term of imprisonment; (4) his rehabilitation efforts; and (5) his belief that he was not a public safety risk. On 25 May 2021, the BOP denied his request, stating that “[r]eleasing [Petitioner] prior to the completion of [his] sentence would greatly minimize the severity of the offense” and after considering the above factors, it “determined that [his] release would pose a danger to the safety of others or the community.” n.3.

n.3. Petitioner requested that the CAAF provide “extraordinary relief in the nature of a motion for compassionate release and reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).” On 29 September 2021, our superior court dismissed Petitioner’s request for lack of jurisdiction. In re Kawai, 82 M.J. 28 (C.A.A.F. 2021) (mem).

Petitioner’s request for compassionate release under these particular statutes is a case of first impression for this court. However, while Petitioner did not style his request as a writ of habeas corpus, we will treat his petition as analogous to such in order to resolve the question of whether we have jurisdiction. The problem for Petitioner is the review of a motion for compassionate release is jurisdictional. “A motion to file for compassionate release can only be brought before the sentencing judge.” Ferguson v. United States, No. 1:22-cv10542, 2022 U.S. Dist. LEXIS 50986, at *2 (E.D. Mich. 21 Mar. 2022). Yet, “[g]eneral courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved.” Witham v. United States, 355 F.3d. 501, 505 (6th Cir. 2004). Because Petitioner’s court was dissolved after his case, and because his case is final under Article 76, ​UCMJ, there is no sentencing court within the military service courts in which Petitioner may bring a motion under 18 U.S.C. § 3582(c)(1)(A)(i). 

However, Congress has charged federal district courts with exercising jurisdiction over habeas corpus petitioners who are imprisoned as a result of court-martial convictions. See Burns v. Wilson, 346 U.S. 137, 139 (1953); Chapman, 75 M.J. at 601; see also Gilliam v. Bureau of Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *3 (8th Cir. 10 Mar. 2000) (unpub. op.). Federal district court is also the proper venue for Petitioner’s motion. See Owens, 2020 U.S. Dist. LEXIS 61460, at *2.

​Whether Petitioner styled his request as a writ of habeas corpus under 18 U.S.C. § 2241, or as a motion for compassionate release, the jurisdictional issue for this court is the same. We do not have jurisdiction over Petitioner’s request.

Cheers.

​Appellant forfeited claims that trial counsel’s questioning of Appellant was improper by failing to object at trial and that Appellant has not met his burden to demonstrate plain error. The court likewise finds Appellant has failed to show that trial defense counsel were constitutionally deficient by failing to object to trial counsel’s questions put to Appellant on cross-examination.

We are not persuaded that Mil. R. Evid. 404(b)(1) is the correct rule to decide this matter. Instead, we look to Mil. R. Evid. 404(a)(2)(A), which governs situations where an accused offers evidence of his character. We also look to the law of impeachment by contradiction. See, e.g., United States v. Sojfer, 47 M.J. 425, 427 (C.A.A.F. 1998). This method of impeachment “involves showing the tribunal the contrary of a witnesses’ asserted fact, so as to raise an inference of a general defective trustworthiness.” United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983) (first citing 3A John H. Wigmore, Evidence § 1000 (Chadbourne rev. 1970); and then citing Charles T. McCormick, McCormick’s Handbook of the Law of Evidence § 47 (E. Cleary 2d ed. 1972)).

​The challenged line of questioning had its origin in responses Appellant gave to trial defense counsel questions when he testified in his own defense. Appellant explained how he took the initiative to find resources to improve communication in his marriage. The implication of his testimony was that AJ was verbally aggressive and behaved inappropriately in their son’s bedroom and, at the same time, Appellant attempted to deescalate the situation by removing AJ from the room. A logical inference from Appellant’s direct examination is that it was less probable he was the aggressor in the May 2017 incident with AJ in their son’s bedroom because, mindful of the resources he took the initiative to discover, Appellant was sensitive to avoiding a conflict escalation in his marriage. Appellant’s testimony about initiatives he said he took to avoid conflict with AJ opened the door to challenge on cross-examination.

You have been made aware countless times over the course of your career that domestic violence is both abhorrent and illegal. The fact that you strangled two women you supposedly loved is so cowardly and reprehensible that I struggle to find words powerful enough for a rebuke. This is made even more difficult because you physically assaulted your loved ones just steps away from your child! Given the tearful statements these women made during your sentencing hearing, it is clear that the damage you inflicted upon them is irreparable. That you had the audacity to downplay their obvious physical and emotional harm is not only repugnant, it demonstrates that you feel neither shame nor ​regret over your actions. Accordingly, you are hereby reprimanded! 

On 11 June 2020, appellant and a group of fellow soldiers went out to a few bars to socialize. Appellant, being under 21, was one of the designated drivers. By the end of the evening, only appellant and the victim remained at the bar. Despite being under the legal drinking age of 21, and a designated driver, appellant consumed "about five to seven drinks" that evening.

At approximately 0200, appellant drove himself and the victim back to White Sands Missile Range (WSMR), their current duty station. The victim did not wear his seatbelt on the drive back to the installation. At approximately 0317, appellant's vehicle rapidly approached one of the WSMR's installation access points. The guard shined a flashlight at appellant in an attempt to get his attention, but appellant's vehicle ultimately collided with one of the concrete barriers. The impact from the collision launched the vehicle into air where it then struck the guard shack and landed upside down. The guard narrowly escaped being hit by appellant's vehicle, which had been traveling approximately eighty-six to ninety-one miles-per-hour at the time of impact. Appellant was airlifted to a nearby hospital for the injuries he sustained. Appellant's blood alcohol level was 0.068 at the time his blood was drawn a few hours after the accident. The victim was declared dead at the scene. 

During the first day of Appellant’s sentencing hearing, the court’s recording device failed, resulting in there being no verbatim transcript for most of the day’s proceedings. Although the Rules for Courts-Martial (R.C.M. or Rules) generally require the record of trial to “include a verbatim transcript of all sessions except sessions closed for deliberations” in serious cases—and impose consequences when that requirement cannot be satisfied—until 2019 the Rules did not authorize any remedial actions that a court could perform to cure a nonverbatim transcript. R.C.M. 1103(b)(2)(B), (f) (2016 ed.). 1 In the absence of any guidance from the Rules, military courts have long authorized three potential solutions when court recording devices fail: (1) declaring a mistrial; (2) reconstructing the record of trial; and (3) starting anew. In this case, the military judge stated that he was going to start Appellant’s sentencing hearing anew, but the record indicates that he neither started anew nor performed one of the other two judicially approved remedies.

​Contrary to his stated intent, the military judge indicated during the second sentencing hearing that he would only consider the testimony of the Government’s witnesses that fell within the scope of their unrecorded testimony from the previous day. His choice to disregard testimony from the second hearing if it went beyond the witnesses’ lost testimony from the first hearing resulted in a hybrid proceeding that did not start the proceedings anew but was instead dependent on—and intrinsically tied to—the unrecorded testimony from the first day of sentencing. Accordingly, we reverse the decision of the United States Army Court of Criminal Appeals (ACCA), set aside the sentence, and remand the case to the Judge Advocate General of the Army for return to an appropriate convening authority for action consistent with R.C.M. 1103(f) (2016 ed.).

Also in November 2019, Appellant talked to a co-worker, JJ, about her issues with TD. According to the stipulation of fact, Appellant told JJ something to the effect of, “I need my husband to go away.” Unsure of Appellant’s context, JJ responded, “Huh?” Appellant then essentially stated, “I will give you $50,000[.00], half of the insurance money, to kill him.” JJ responded, “I’m not going to kill your husband. Get someone else to do that.” Appellant told JJ she had contacted previous boyfriends to ask them to kill TD, but they told her they would not do it. JJ told Appellant, “There is no perfect crime. Don’t you watch reality TV crime shows? You are going to get caught[.]” 
. . . 
Also on 30 November 2019, Appellant made contact with TL, an individual she knew previously, and asked for his assistance in her plan to murder TD. 6 When TL asked for clarification, Appellant responded, “My most recent thought was putting a bunch of muscle relaxers and pain pills in a drink of his.

etc., etc., etc.