United States v. DAWSON

Before DALY, GROSS, and de GROOT Appellate Military Judges _________________________ UNITED STATES Appellee v. Matthew R. DAWSON Quartermaster Third Class (E-4), U.S. Navy Appellant No. 202400414 _________________________ Decided: 3 June 2026 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judges: John J. Stephens (arraignment) Derek D. Butler (motions) G. Glenn Gerding (motions) Michael F. Whitican (trial) Sentence adjudged 1 August 2024 by a special court-martial tried at Naval Station Great Lakes, Illinois, consisting of officer members. Sen- tence in the Entry of Judgment: reduction to E-2, confinement for 45 days, and forfeiture of $746.16 pay per month for three months. For Appellant: Ms. Kimberly D. Barnes For Appellee: Commander John T. Cole, JAGC, USN Major Mary Claire Finnen, USMC  United States v. Dawson, NMCCA No. 202400414 Opinion of the Court Chief Judge DALY delivered the opinion of the Court, in which Senior Judge GROSS and Judge de GROOT joined. _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ DALY, Chief Judge Appellant was convicted, contrary to his pleas, of one specification of lar- ceny, in violation of Article 121, Uniform Code of Military Justice (UCMJ), for stealing two computers of a value of approximately $ 5,978.00, the property of the Navy Exchange Service Command. 1 Appellant raises six assignments of error (AOEs). The four below warrant discussion: 2 I. Did the convening authority commit unlawful com- mand influence where he obtained Appellant’s full R.C.M. 706 Board Report and subsequently made nu- merous decisions adverse to Appellant? II. Did the military judge abuse his discretion when he denied Appellant’s motion for pretrial confinement credit? 1 10 U.S.C. § 921. 2 Appellant raised the following AOE pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): Are the facts insufficient to prove larceny where the Govern- ment had no evidence that the allegedly stolen items were actually laptops valued over $5,000 rather than simply boxes? We carefully considered the matters raised by Ap- pellant in his brief and find they do not require discussion or relief. Specifically, Ap- pellant has not met the specific showing of a deficiency in proof. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). Appellant also raised the following AOE through counsel: Was Appellant deprived of his Constitutional right to a fair and im- partial members panel when there was not a requirement to reach a unanimous ver- dict for a conviction? We find it to be without merit. United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987); see United States v. Anderson, 83 M.J. 291 (C.A.A.F. 2023); United States v. Causey, 82 M.J. 574 (N-M. Ct. Crim. App. 2023). 2  United States v. Dawson, NMCCA No. 202400414 Opinion of the Court III. Did the military judge abuse his discretion when he denied most of the defense’s continuance request, thereby denying Appellant his right to effective rep- resentation at trial? IV. Was the adjudged sentence to forfeitures incorrect by not being awarded in whole dollars? We find no prejudicial error and affirm the findings and sentence, though we modify the Entry of Judgment to reflect forfeiture of pay in whole dollars. I. BACKGROUND On 8 June 2023, the convening authority referred to special court-martial a charge and specification against Appellant for larceny of two computers from the Navy Exchange. A. Trial Defense Motions 1. Motion to Dismiss for Unlawful Command Influence Before trial, on 7 July 2023, Trial Defense Counsel (TDC) requested, and the military judge then ordered on 11 July 2023, a mental responsibility in- quiry pursuant to Rule for Courts-Martial (R.C.M.) 706. 3 After some delay, the military judge inquired about the status of the evaluation. Trial counsel con- firmed the hospital had not scheduled the request. 4 The military judge ordered the evaluation to be completed no later than 29 November 2023, and it was completed that day. 5 Appellant’s commanding officer (CO), who was also the convening authority, asked for and received the full evaluation report (706 re- port). 6 Seven days later, the CO ordered Appellant into pretrial confinement based on unrelated charges. 3 App. Ex. II and III. 4 R. at 13. 5 App. Ex. VI and V. 6 App. Ex. X at 23; Full R.C.M. 706 Report, Appellant’s Mot. to Attach, App’x A (August 20, 2025). We granted Appellant’s Motion to Attach his Full R.C.M. 706 Report on 27 May 2026. 3  United States v. Dawson, NMCCA No. 202400414 Opinion of the Court Appellant made a timely motion to dismiss for unlawful command influence based on the convening authority’s receipt of the full mental responsibility re- port. 7 Specifically, Appellant argued that the CO’s access to that report, while also acting as the convening authority, made the proceedings unfair. Appellant moved to dismiss the charge and specification, or in the alternative, to disqual- ify the convening authority and continue the trial dates. 8 The military judge denied the motion to dismiss and found that Appellant had failed to show some evidence of unlawful command influence. 9 2. Motion for Continuance The military judge set forth the timeline of the case, which we adopt, and we highlight the following: Charges were referred in this case on 8 June 2023, over 13 months ago; The accused had the benefit of detailed defense counsel . . . for over 12 months; The accused elected per his rights to excuse his defense counsel on 3 July 2024, 11 days before trial was supposed to begin in this case . . . ; ... The defense and the accused have been provided two prior con- tinuances in this case. . . . Neither of those motions for continu- ances affected the current defense counsel appearing on the rec- ord today. 10 The trial was scheduled to start on 15 July 2024. On 12 July 2024, newly- appointed TDC requested a continuance until a date no earlier than 30 Sep- tember 2024. 11 The military judge ruled orally on the continuance motion, cit- ing the standard of review, making findings of fact, and granting the continu- ance in part until 30 July 2024. 12 The military judge acknowledged that the delay “consists of 15 days between now and the start of trial, and 20 days since 7 App. Ex. VII. 8 App. Ex. VII at 5. 9 R. at 57–58. 10 R. at 153. 11 App. Ex. XXIX. 12 R. at 152–60. 4  United States v. Dawson, NMCCA No. 202400414 Opinion of the Court Defense Counsel was detailed to this case.” 13 Although TDC did not make a motion for reconsideration of the continuance motion or make any additional motions for a continuance, TDC wanted to make a record of what “defense would have done or could have done in this case if a longer continuance had been granted. Every step that this defense team took was, by the nature of the short continuance, abbreviated and rushed. . . .” 14 TDC stated that they did not have enough time to read through discovery, file motions related to discovery, work potential plea negotiations, and visit the scene. 15 The military judge then questioned TDC about what they would have spe- cifically done differently or if they would have filed any additional motions. 16 Both TDC declared that the limited time hindered their ability to pursue non-judicial resolution that their client had previously refused, but to which he was later amenable. 17 Ultimately, TDC did request a separation in lieu of trial on behalf of Appellant, which the convening authority declined, and the case proceeded to trial. 18 3. Motion for Seven Days of Pretrial Confinement Before findings, Appellant made an oral motion for seven days of pretrial confinement credit and presented documents from the initial review hearing. 19 Appellant was placed in pretrial confinement on 9 December 2023 for unre- lated charges, six months after the referral date for this court-martial. Appel- lant argued that although the charges were unrelated to this court-martial, the convening authority referenced the underlying facts of the larceny offense in 13 R. at 159. 14 R. at 211–13. 15 R. at 211–13 16 R. at 213–16 (The military judge confirmed that TDC had not asked for recon- sideration of their motion for a continuance or any additional motions, TDC had re- ceived R.C.M. 912 matters for eight of nine members the previous day, and TDC had been able to communicate with the previous defense counsel in the case about the case). 17 TDC Decls., Appellant’s Mot. to Attach, App’x A and B (August 21, 2025). We granted Appellant’s Motion to Attach the TDC Declarations on 27 May 2026. 18 Id. 19 R. at 640–50; App. Ex. LVII. 5  United States v. Dawson, NMCCA No. 202400414 Opinion of the Court the paragraph, “general circumstances,” to justify that Appellant would con- tinue to engage in future serious misconduct. 20 There is no dispute that Appellant was in pretrial confinement for seven days. 21 The military judge confirmed, “Allen credit applies when the time in custody is a result of a criminal charge for which the sentence is imposed: that would be larceny here.” 22 Before sentencing, the military judge denied Appel- lant’s motion for pretrial confinement credit. 23 B. The Members Adjudged the Sentence of Forfeitures Incorrectly Be- cause They Were Not in Whole Dollars. The members sentenced Appellant to forfeit $746.16 pay per month for 3 months, which is not in whole dollar amount as required by R.C.M. 1003(b)(2). The Entry of Judgment repeats the forfeiture language as adjudged by the members. II. DISCUSSION A. The Convening Authority did not Commit Unlawful Command In- fluence Where He Obtained Appellant’s Full R.C.M. 706 Board Report and Subsequently Made Numerous Decisions Adverse to Appellant. 1. Applicable Law and Standard of Review. The United States Court of Appeals for the Armed Forces (CAAF) “has long recognized that Article 37(a), UCMJ, prohibits unlawful influence by all per- sons subject to the UCMJ.” 24 “The term ‘unlawful command influence’ has been used broadly . . . to cover a multitude of situations in which superiors have unlawfully controlled the actions of subordinates in the exercise of their duties under the UCMJ.” 25 The CAAF has found that “an ‘improper manipulation of the criminal justice process,’ even if effectuated unintentionally, will not be countenanced by this [c]ourt.” 26 20 R. at 642–43. 21 R. at 645–46; App. Ex. LVIII. 22 R. at 649. 23 R. at 710. 24 10 U.S.C. § 837(a); United States v. Barry, 78 M.J. 70, 76 (C.A.A.F. 2018). 25 United States v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994). 26 Barry, 78 M.J. at 78. 6  United States v. Dawson, NMCCA No. 202400414 Opinion of the Court When an allegation of unlawful command influence is litigated at trial, the military judge’s findings of fact are reviewed for clear error. 27 This means that an appellate court must “accept as true the military judge’s findings of fact on a motion to dismiss for unlawful command influence unless those findings are clearly erroneous.” 28 An appellate court must “review de novo the legal question whether” the facts found by the military judge “constitute unlawful command influence.” 29 “[T]he initial burden of showing potential unlawful command influence is low, but is more than mere allegation or speculation.” 30 “Instead, an appellant must show ‘some evidence’ in order to sufficiently raise the issue.” 31 Once an appel- lant meets this threshold, a far higher burden shifts to the Government; it must prove beyond a reasonable that: (1) the predicate facts do not exist; or (2) the facts do not constitute unlawful command influence; or (3) the unlawful command influence had no prejudicial impact on the court-martial. 32 2. Analysis The CO asked for and received Appellant’s full 706 report and continued to take military justice actions against Appellant, including ordering Appellant into pretrial confinement on unrelated charges. Appellant argues that the CO’s access to the report and military justice actions taken against Appellant met the low threshold of “some evidence” of unlawful command influence. 33 We dis- agree. Specifically, R.C.M. 706(c)(3)(B) authorizes the release of the full report to the commanding officer, upon his or her request. Relying on the findings of the military judge, which we conclude are not clearly erroneous, we agree that Appellant has failed to meet his initial burden of successfully showing “some evidence” of facts which constitute unlawful in- fluence on the part of the convening authority. Specifically, we concur with the 27 United States v. Johnson, 54 M.J. 32, 34 (C.A.A.F. 2000). 28 United States v. Proctor, 81 M.J. 250, 255 (C.A.A.F. 2021) (citing United States v. Stirewalt, 60 M.J. 297, 300 (C.A.A.F 2004)). 29 United States v. Ayers, 54 M.J. 85, 95 (C.A.A.F. 2000) (citing United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994)). 30 United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013) (citing United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002). 31 Barry, 78 M.J. at 77. 32 United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999). 33 Appellant’s Brief at 13–19. 7  United States v. Dawson, NMCCA No. 202400414 Opinion of the Court military judge who found that even if the access by the CO to the mental re- sponsibility exam was improper, the evidence does not show that he unlawfully attempted to influence the action of a court-martial. 34 The military judge stated, “I don’t see any evidence connecting the access to the [R.C.M.] 706 re- port with attempting to influence the court-martial.” 35 Specifically, we agree with the military judge that the CO’s access to mate- rials in the report, without more, does not amount to unlawful command influ- ence. The military judge went on to conclude, and we similarly agree, that ac- cess by the CO to the report is not improper but specifically authorized within R.C.M. 706. 36 We hold that the CO’s access to Appellant’s mental responsibility report does not constitute “some evidence” of unlawful command influence. It fails to meet the threshold requirement under Biagase to shift the burden to the Gov- ernment because it is mere speculation that he made the adverse decisions regarding Appellant because of the report. B. Appellant was not Entitled to Pretrial Confinement Credit. 1. Standard of Review We review the question of whether Appellant is entitled to pretrial credit de novo. 37 Appellant argues that he was entitled to pretrial confinement credit be- cause the justification letter for his confinement mentioned the charges before this court, and he cites the DoD Sentence Computation Manual that requires “credit for each day spent in pretrial confinement or under restriction tanta- mount to confinement for crimes for which the prisoner was later convicted.” 38 We disagree. 2. Analysis Our opinion in United States v. Speight provides the historical legal context and analysis that the Court of Military Appeals used for its decision in United 34 R. at 57. 35 R. at 57. 36 R. at 58; R.C.M. 706(c)(3)(B). 37 United States v. Smith, 56 M.J. 290, 292 (C.A.A.F. 2002). 38 Dep’t of Def. Man. 1325.07, para. C2.4.2 (Jul. 27, 2004 & Ch. 3, Sept. 26, 2018). 8  United States v. Dawson, NMCCA No. 202400414 Opinion of the Court States v. Allen. 39 Much like Appellant here, in Speight, “appellant sought credit for a period of confinement resulting from misconduct separate and apart from the misconduct for which he was ultimately convicted” and that claim was re- jected by this Court. 40 We likewise find Appellant’s claim to be without merit. C. The Military Judge Did Not Abuse His Discretion When He Denied Most of the Defense’s Continuance Request. 1. Standard of Review and Applicable Law. We review the military judge’s decision to grant or deny a continuance for abuse of discretion. 41 A military judge abuses his discretion when his reasons for his ruling are “clearly untenable and . . . deprive a party of a substantial right such as to amount to a denial of justice.” 42 Our superior court supplied a set of factors we should consider in determin- ing whether a ruling amounts to an abuse of discretion. 43 The Miller factors to determine whether there was an abuse of discretion include: Surprise, nature of any evidence involved, timeliness of the re- quest, substitute testimony or evidence, availability of witness or evidence requested, length of continuance, prejudice to oppo- nent, moving party received prior continuances, good faith of moving party, use of reasonable diligence by moving party, pos- sible impact on verdict, and prior notice. 44 “ ‘Unreasonable and arbitrary insistence upon expeditiousness in the face of justifiable request for delay’ is an abuse of discretion.” 45 39 United States v. Speight, 2021 CCA LEXIS 133 (N-M. Ct. Crim. App. Mar. 30, 2021) (unpublished) (citing United States v. Allen, 17 M.J. 126 (C.M.A. 1984)). 40 Id. at *9. 41 United States v.Miller, 47 M.J. 358 (C.A.A.F. 1997) (citing United States v. Thomas, 22 M.J. 57, 59 (C.M.A. 1986)). 42 Id. at 358 (citing United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)). 43 United States v. Weisbeck, 50 M.J. 461, 464 (C.A.A.F. 1999) (citing Miller, 47 M.J. at 358). 44 Id. 45 Id. at 466 (quoting United States v. Soldevila-Lopez, 17 F.3d 480, 487 (1st Cir. 1994)). 9  United States v. Dawson, NMCCA No. 202400414 Opinion of the Court 2. Analysis Appellant contends that the military judge abused his discretion by not cit- ing the Miller factors and granted an insufficient continuance. Because of this, Appellant claims he was prejudiced. 46 Having now considered the record, in- cluding TDC’s declarations, we find the military judge did not abuse his dis- cretion. We recognize the basis for the continuance request was not to acquire evi- dence, but rather to ensure adequately prepared defense counsel, a fundamen- tal trial concern. The military judge did as well. He cited the correct standard of review and law even though he did not specifically say, “Miller factors.” 47 The military judge used the factors in his analysis: The accused is entitled to effective assistance of counsel. The court does not believe that 77 days of delay is required in order to provide the accused with that right to have effective assis- tance of counsel, and the evidence before the court, the court be- lieves that defense counsel can be adequately and sufficiently prepared for trial in this case, which involves a single specifica- tion of larceny at a special court-martial, given the fact that all discovery has presented, given the fact that . . . defense counsel has access to previous defense counsel’s files and materials, and still acts as the previous defense counsel, should she and the de- fense desire to use her as a resource, though not as counsel of record, and the fact that the government has an interest in the expeditious, though fair administration of charges which it has referred to a court-martial. 48 We find the military judge’s decision was reasonable and not arbitrary. 49 The military judge did not abuse his discretion. D. The Adjudged Sentence is Incorrect Because It was Not Awarded in Whole Dollars. “Unless a total forfeiture is adjudged, a sentence to forfeiture shall state the exact amount in whole dollars to be forfeited each month and the number 46 Appellant’s Brief at 36–47. 47 R. at 152–53. 48 R. at 158–59. 49 See Weisbeck, 50 M.J. at 466. 10  United States v. Dawson, NMCCA No. 202400414 Opinion of the Court of months the forfeitures will last.” 50 Here, the members adjudged the forfei- tures as $746.16 per month for a period of three months instead of expressing the partial forfeitures as a whole dollar amount per month. As entered, the Entry of Judgment repeats the same language. The failure to account for forfeitures in a dollar amount is a clerical error with “no prejudicial impact on the accused,” and it is easily remedied. 51 Failure to use whole dollars is no different, with the remedy being to reduce forfeitures approved by the convening authority to a whole dollar amount per month. Accordingly, we will modify the sentence and the EOJ. All rights, privi- leges, and property of which Appellant has been deprived by virtue of execution of forfeitures in the Entry of Judgment which have not been affirmed will be restored. We issue a corrected Entry of Judgment, in accordance with R.C.M. 1111(c)(2). 50 R.C.M. 1003(b)(2). 51 United States v. Jewett, No. 200900167, 2009 CCA LEXIS 688, at *2 (N-M. Ct. Crim. App. Sept. 24, 2009) (unpublished) (quoting United States v. Gilgallon, 1 C.M.A. 263, 266, 2 C.M.R. 170, 172 (C.M.A. 1952)). 11  United States v. Dawson, NMCCA No. 202400414 Opinion of the Court III. CONCLUSION After careful consideration of the record and briefs of appellate counsel, we have determined that the findings are correct in law, the sentence as modified is correct in law and fact, and no error materially prejudicial to Appellant’s substantial rights occurred. 52 The Entry of Judgment is modified to reflect forfeitures in whole dollar amount. Appellant is entitled to have court-martial records that correctly re- flect the content of his proceeding. 53 In accordance with R.C.M. 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record. The findings and sentence as modified are AFFIRMED. FOR THE COURT: MARK K. JAMISON Clerk of Court 52 Articles 59 & 66, UCMJ. 53 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). 12 UNITED STATES NMCCA NO. 202400414 v. ENTRY OF Matthew R. DAWSON JUDGMENT Quartermaster Third Class (E-4) As Modified on Appeal U.S. Navy Accused 3 June 2026 On 1 August 2024, the Accused was tried at Naval Station Great Lakes, Illinois, by a special court-martial consisting of officer members. Military Judge Michael Whitican presided over the trial and completed the Entry of Judgment. FINDINGS The following are the Accused’s pleas and the Court’s finding to all offenses the convening authority referred to trial: Charge: Violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. Plea: Not Guilty. Finding: Guilty. Specification: On or about 31 May 2023, steal two computers, of a value of approximately $5.978.00, the property of the Navy Exchange Service Command. Plea: Not Guilty. Finding: Guilty.  United States v. Dawson, NMCCA No. 202400414 Modified Entry of Judgment SENTENCE On 1 August 2024, the members sentenced the Accused to the following: Reduction to E-2; Confinement for 45 days; and Forfeiture of $746.00 per month for three months. FOR THE COURT: MARK K. JAMISON Clerk of Court 2