For the first time on appeal, Appellant argues that Clause 3 of Article 134, UCMJ (“Clause 3”), is unconstitutional as applied to servicemembers because it denies equal protection of the law. Appellant argues that a defendant in civilian federal court enjoys more constitutional rights than does a military accused, such as entitlement to grand jury indictment, jury size, and the requirement of a unanimous jury verdict. Consequently, according to Appellant, the Government’s election of the military forum under Clause 3 deprives him and other servicemembers of equal protection under the law because civilian federal prosecutors declined to prosecute those offenses. Appellant asks this court to set aside and dismiss Specification 2 of Charge VI (making a silencer) and Specification 5 of Charge VI (selling a firearm to a known felon), which were charged under Clause 3.
. . . 
Appellant must prove the Government has no rational basis for treating a military accused differently from a civilian federal defendant. See Paulk, 66 M.J. at 643. It is well established, however, that the Constitution applies to a military accused differently in many contexts than it does to a civilian defendant. See Easton, 71 M.J. at 175–76. We determine that Congress possessed a rational basis when it passed Clause 3, specifically, the promotion of good order and discipline by allowing military prosecution of federal crimes not necessarily enumerated in the UCMJ. We further conclude Congress possessed a rational basis for making Clause 3 offenses subject to the military court-martial system and not requiring the military provide a military accused the exact same rights as a federal civilian defendant. We also note that Appellant pleaded guilty to the Clause 3 offenses.

What Petitioner has not identified is any right to have the accused’s courtmartial dates set such that they accommodate either her or her victims’ counsel’s schedule. Instead, Petitioner’s potential absence more directly impacts the ability of the Government to present its case, which is to say that if Petitioner’s live testimony is important to the Government’s case, then it is the Government which would seek relief in order to ensure Petitioner’s presence. In this case, the Government requested a continuance for this very reason. That request was denied, and the Government has not sought relief from our court. Just as Petitioner has no legal ability to force the Government to call her as a witness, Article 6b, UCMJ, does not provide Petitioner with authority to challenge—on the Government’s behalf—the military judge’s substantive ruling on the continuance motion with respect to such matters as her availability. Victims involved in court-martial proceedings do not have the authority to challenge every ruling by a military judge with which they disagree; but they may assert their rights enumerated in Article 6b, UCMJ, in the Manual for Courts-Martial, and under other applicable laws.

​of attempting to escape custody, desertion, resisting apprehension, striking a superior noncommissioned officer, failure to obey a lawful order, unlawfully carrying a concealed handgun, assault upon a person in the execution of military law enforcement duties, fleeing apprehension, and resisting apprehension[.]

was acquitted of one specification each of fleeing apprehension and assaulting a superior noncommissioned officer[.]

After this court affirmed the findings and sentence, United States v. Edwards, No. ACM 39696, 2021 CCA LEXIS 106 (A.F. Ct. Crim. App. 10 Mar. 2021) (unpub. op), the United States Court of Appeals for the Armed Forces (CAAF) granted Appellant’s petition for review of the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ALLOWING THE VICTIM TO PRESENT AS AN IMPACT STATEMENT A VIDEO—PRODUCED BY THE TRIAL COUNSEL—THAT INCLUDED PHOTOS AND BACKGROUND MUSIC United States v. Edwards, 81 M.J. 424 (C.A.A.F. 2021) (order).

The CAAF concluded that the military judge abused his discretion by allowing the video as an unsworn victim impact statement. United States v. Edwards, 82 M.J. 239, 241 (C.A.A.F. 2022). The CAAF found that “the materiality and high quality of the video—as illustrated by the Government’s use of the video during sentencing—prevent [the CAAF] from concluding that the Government has met its burden of establishing that the video did not substantially influence Appellant’s sentence.” Id. at 248. Accordingly, the CAAF affirmed the findings, but our decision was reversed with respect to the sentence. Id. at 241. The CAAF vacated Appellant’s sentence and returned the record to The Judge Advocate General of the Air Force for remand to this court. Id. The remand stated that this court may “either reassess the sentence based on the affirmed findings or order a sentence rehearing.” Id.

On remand, counsel for both parties filed a consent motion for leave to file joint brief, which this court granted on 17 November 2022. The joint brief reflects the parties’ agreement to request that this court reassess Appellant’s adjudged sentence. The parties concur that, absent the error involved in Appellant’s court-martial, the sentence adjudged would have been at least a dishonorable discharge, confinement for 30 years, forfeiture of all pay and allowances, and RIR.

“[a]ny relevant personnel, medical, and mental health records of any complaining witness . . . to include records in the possession of the Family Advocacy Program (FAP) . . . .”

"575 pages of medical records, including 42 pages of FAP records."

"As noted above, the military judge’s order did not address Mil. R. Evid. 513 at all. Therefore, we cannot be certain how the military judge analyzed the application of the rule." 
. . . 
[W]e conclude Petitioner has clearly and indisputably demonstrated she is entitled to relief with respect to Mil. R. Evid. 513 and the FAP records. Moreover, we find there is no other adequate means to secure relief, as Congress has specifically authorized Petitioner to seek mandamus relief from this court for a military judge’s ruling affecting protections afforded her by Mil. R. Evid. 513. Furthermore, we find the issuance of such a writ is appropriate under the circumstances.
. . . 
​Accordingly, it is by the court ORDERED: Petitioner’s petition for extraordinary relief in the nature of a writ of mandamus is GRANTED IN PART and DENIED IN PART. The military judge’s 11 October 2022 ruling granting the defense motion to compel discovery is SET ASIDE IN PART, specifically with respect to the FAP records in the Government’s possession. The defense motion to compel discovery remains pending before the military judge with regard to the FAP records in the Government’s possession. 

​” Trial defense counsel pointed to Maj MP’s “very high opinion” of Maj RW and told the military judge that Maj RW was “very financially well off” based upon some profitable investments he had made. The relevance of Maj RW’s financial status, according to trial defense counsel, was that Maj MP essentially said he “goes to [Maj RW] for financial advice. . . . It’s where [Maj MP] is literally going to somebody who has had a significant amount of success financially and both [sic] in his career and asked him for advice.” Trial defense counsel argued that Maj MP was relying on Maj RW’s advice on “potentially major life and financial decisions.” Trial defense counsel pointed to the length of the conversations and the fact that Maj MP and Maj RW had a long conversation just days before the court-martial, as well as the fact that Maj RW was an adverse witness to Appellant—in no small part because Maj RW was in a relationship with Ms. CC, Appellant’s former girlfriend and victim in the case. The Defense also noted Maj RW’s affiliation with the potential defense witness, Capt SS. 

he had considered the liberal grant mandate and that he did “not find it to be a particularly close call based upon [witness/member] limited interaction.

[A]pproximately eight months before Appellant’s court-martial, she started volunteering at a local shelter for women who were victims of domestic violence. Maj JR’s role was to lead hour-long yoga classes once or twice a month. The shelter prohibited volunteers from talking to the shelter residents about the abuse they suffered and from interacting with the women at all outside the shelter. [S]he went through a four-hour volunteer orientation at the shelter before she started leading the yoga classes, but there was no discussion of domestic violence itself during the orientation. The Defense challenged Maj JR under an implied bias theory based upon her volunteering at the shelter. Trial defense counsel said the Defense might call an expert witness to testify about “biases within the system when they know the victim of domestic violence,” which might conflict with Maj JR’s experience at the shelter.

Appellant raises one assignment of error with six underlying allegations that trial defense counsel was constitutionally ineffective during his representation of Appellant by failing to: (1) object to improper findings testimony; (2) call a defense expert witness; (3) object to admission of incomplete personnel records; (4) object to an improper victim impact statement; and (5) investigate favorable defense witnesses. In addition, Appellant claims (6) trial defense counsel’s “misplaced concern for the named victim amounted to an actual conflict of interest which adversely impacted his representation” of Appellant by withdrawal of a valid objection during sentencing.

​Although the rationale given by trial defense counsel to explain his advocacy during sentencing is perplexing, Appellant has not shown that any of his allegations constituted a deficiency of a constitutional scale or error that materially prejudiced his substantial rights. We thus affirm the findings and sentence. 

Appellant asserts trial counsel’s statement that the court had “heard no evidence” that Appellant had “actually gotten help” during the “yearand-a-half” of investigation was improper because the Defense had no obligation to put on evidence. The implication of trial counsel’s comment was that the Defense had failed to introduce such evidence. We agree this argument by trial counsel was, at a minimum, poorly phrased. Trial counsel is generally not permitted to comment on the failure of the defense to produce evidence. Taylor, 47 M.J. at 324 (C.A.A.F. 1997). Although Taylor and the cases cited therein dealt specifically with evidence for findings, with regard to sentencing evidence this court has noted: “Whenever trial counsel chooses to argue that an accused has not ‘shown’ the sentencing authority something, counsel treads backwards into a mine field in over-sized galoshes while wearing a blindfold.” United States v. Feddersen, No. ACM 39072, 2017 CCA LEXIS 567, at *9 (A.F. Ct. Crim. App. 21 Aug. 2017) (unpub. op.). In response, the Government cites United States v. Edwards for the principle that trial counsel may comment on an accused’s expression of remorse in an unsworn statement that “can be arguably construed as being shallow, artificial, or contrived.” 35 M.J. 351, 355 (C.M.A. 1992) (citations omitted). However, this response misses the mark. The concern is not that trial counsel commented on Appellant’s unsworn statement, but that he did so by implying the Defense failed to introduce evidence substantiating Appellant’s statement, rather than referring to “other evidence in the record which gives rise to the inference that [the] accused [wa]s not remorseful.”

In light of Rule for Courts-Martial (R.C.M.) 705(c)(1)(b), did the military judge err when she:
A. Failed to advise Appellant that his agreement to “waive all waivable motions” could not be enforced to prevent him from raising an R.C.M. 707 speedy trial motion;

B. Implied that “in order to get the benefit” of his pretrial agreement, Appellant had to “give up making these motions,” which included an R.C.M. 707 speedy trial motion; and

C. Advised Appellant that his failure to “waive all waivable motions,” implicitly including his R.C.M. 707 speedy trial motion, would result in the cancelation of his pretrial agreement? If so, is appellant entitled to relief?

Did Appellant receive ineffective assistance of counsel when trial defense counsel failed to seek relief for a potential violation of Appellant’s right to speedy trial under [R.C.M.] 707? If so, is Appellant entitled to relief?