United States v. Deloe

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 25036 (f rev) ________________________ UNITED STATES Appellee v. Daniel J. DELOE Senior Airman (E-4), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary1 Decided 29 May 2026 ________________________ Military Judge: Tiny L. Bowman.

Sentence: Sentence adjudged 17 December 2024 by SpCM convened at McConnell Air Force Base, Kansas. Sentence entered by military judge on 2 February 2025: 10 months confinement, reduction to E-1, and a reprimand.

For Appellant: Captain Joyclin N. Webster, USAF; Dwight H. Sullivan, Esquire.

For Appellee: Major Vanessa Bairos, USAF; Mary Ellen Payne, Esquire.

Before DOUGLAS, MCCALL, and KUBLER, Appellate Military Judges.

Senior Judge DOUGLAS delivered the opinion of the court, 2 in which Judge MCCALL and Judge KUBLER joined. ________________________

United States v. Deloe, No. ACM 25036 (f rev)

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ DOUGLAS, Senior Judge: A military judge sitting as a special court-martial convicted Appellant, con- sistent with his pleas and pursuant to a plea agreement, of one specification of wrongful use of cocaine, on divers occasions, and one specification of wrongful distribution of cocaine, on divers occasions, in violation of Article 112a, Uni- form Code of Military Justice (UCMJ), 10 U.S.C. § 912a.3,4 The military judge sentenced Appellant to ten months confinement, reduction to the grade of E-1, and a reprimand. The convening authority took no action on the findings or the sentence and provided the language for the reprimand.

Appellant personally raises two issues on appeal, whether: (1) the fairness and appearance of fairness of Appellant’s court-martial were compromised when his original trial defense counsel was reassigned as the supervisor of the trial counsel prosecuting the case; and (2) records of Appellant’s electronic monetary transactions were seized in violation of his Fourth Amendment5 rights. Appellant raises issues (1) and (2) pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

On review, we find no error that materially prejudiced Appellant’s substan- tial rights, and we affirm the findings and sentence.

I. BACKGROUND The basis for the convicted offenses in this case involves Appellant’s actions between on or about 1 January 2021 and 31 March 2023. During this time, Appellant attended different social gatherings at or near the state of Kansas, where he used and distributed cocaine. Appellant first used cocaine when a friend provided it at her house. Then, most weekends between August 2022 and February 2023, Appellant hosted military members and civilians at his

5 U.S. CONST. amend. IV.

United States v. Deloe, No. ACM 25036 (f rev) shared residence. At these gatherings, Appellant and his guests would primar- ily use the cocaine in the residence’s bathroom, bedrooms, and living room.

Appellant and his roommate would purchase the cocaine from a local drug dealer using their own funds or money collected from party guests in advance.

Appellant and his roommate would divide the cocaine into individual portions and distribute it to the guests. Appellant consumed the cocaine along with his guests.

Pursuant to his written plea agreement, Appellant agreed to “waive all wai- vable motions . . . .” During the plea agreement inquiry, the trial judge asked trial defense counsel which motions were not being made pursuant to this term. Trial defense counsel explained there were three motions that were con- templated or actually filed prior to trial. One of the motions, filed with the court, was a motion to suppress seized electronic monetary transaction records because the Government’s notice was past the trial judge’s scheduling date.

The trial judge asked Appellant if he understood this term of his plea agree- ment, to waive all waivable motions, as it related to the motion to suppress seized electronic monetary transaction records, as described by his counsel.

Appellant agreed that he understood. [Trial Judge]: Senior Airman Deloe, did you freely and voluntar- ily agree to this term of your agreement in order to receive what you believe to be a beneficial agreement? [Appellant]: Yes, Your Honor. .... [Trial Judge]: All right. Senior Airman Deloe, do you understand that if these motions were made and granted by me, then possi- ble rulings could have been that those transactions document[s] would not be used against you . . . ? Did you understand that those [potential rulings] would be the outcome had you been able to go forward with those motions? [Appellant]: Yes, Your Honor.

II. DISCUSSION A. Fairness of Appellant’s Court-Martial Appellant alleges that the fairness and appearance of fairness of his court- martial was compromised because his original trial defense counsel, Major (Maj) SS, was reassigned as a supervising attorney for the trial counsel who

United States v. Deloe, No. ACM 25036 (f rev) prosecuted Appellant’s case.6 Specifically, in his declaration,7 Appellant states that on or about July 2024 he entered into an attorney-client relationship with Maj SS. This attorney-client relationship consisted of discussions concerning the facts of the allegations against him. Appellant’s attorney-client relation- ship with Maj SS was terminated when Maj SS received a new duty assign- ment in the same month, July 2024, as the deputy staff judge advocate for the 22d Air Refueling Wing, McConnell Air Force Base (AFB), Kansas. In this role, Appellant claims that Maj SS served as a supervisor to the trial counsel who prosecuted Appellant’s case. Appellant was tried and sentenced on 17 Decem- ber 2024, at McConnell AFB.

1. Law “We review whether an appellant has waived an issue, a question of law, de novo.” United States v. Suarez, 86 M.J. 65, 70 (C.A.A.F. 2025) (quoting United States v. Givens, 82 M.J. 211, 215 (C.A.A.F. 2022)). “A criminal defend- ant may knowingly and voluntarily waive many of the most fundamental pro- tections afforded by the Constitution.” Id. (citing United States v. Mezzanatto, 513 U.S. 196, 201 (1995)). “However, [t]here is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege.” Id. (alteration in original) (internal quotation marks omit- ted) (citing United States v. Smith, 85 M.J. 283, 287 (C.A.A.F. 2024)).

“When . . . an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.” United States v. Suarez, 86 M.J. 65, 70–71 (C.A.A.F. 2025) (omission in original) (quoting United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)).

Errors in defense counsel severance “can be evaluated under the standard formula for assessing prejudice against the defense, in which the defense must establish that the error produced material prejudice to the substantial rights of the accused.” United States v. Hutchins, 69 M.J. 282, 292 (C.A.A.F. 2011) (citations omitted).

A defense counsel may be excused with the express consent of the accused.

Rule for Courts-Martial 506(3)(c).

United States v. Deloe, No. ACM 25036 (f rev)

2. Analysis On appeal, for the first time, Appellant alleges that “an appearance of di- vided loyalty arose when Appellant’s former defense counsel became the trial counsel’s supervisor,” citing United States v. Lee, 66 M.J. 387, 389 (C.A.A.F.

2008) (quoting ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 1235 (1972)). Appellant proclaims “that a lawyer should have undivided loyalty to his client . . . . ” We find Appellant waived this concern at trial.

During his trial, neither Appellant nor his trial defense counsel mentioned Appellant’s prior relationship with Maj SS, which we have no reason to doubt existed as Appellant declares. Instead, Appellant was represented at his trial by two military defense counsel. He elected to be represented by them, and by them alone. Throughout his trial, he indicated he was satisfied with his defense counsel. On appeal, he does not allege ineffective assistance from his trial de- fense counsel.

If Maj SS, his former defense counsel, transitioned to be the deputy staff judge advocate at McConnell AFB, we agree with Appellant that she would logically have a supervisory role over the prosecutors in Appellant’s trial. How- ever, we have no evidence, or reason, to impugn Maj SS or her compliance with her rules of professional responsibility with respect to conflicts of interest and loyalty to a former client. There is no indication that she actively supervised the prosecutors in Appellant’s case for the purpose of preparing his court-mar- tial. Nor do we have any evidence she may have used any information from her confidential communications with Appellant to help develop the prosecutors’ case against Appellant. Rather, we apply a presumption of regularity to her actions as a former defense counsel. “Under the presumption of regularity, we presume the [G]overnment carried out its business affairs in accordance with applicable rules and regulations, absent evidence to the contrary . . . .” United States v. Jones, 47 M.J. 725, 726 (A.F. Ct. Crim. App. 1997). With no evidence to the contrary, we presume Appellant consented to the excusal of Maj SS, that she comported with her rules of professional responsibility, and that she deter- mined herself conflicted from helping the prosecutors prepare their case against Appellant.

Here, even if we were not to find waiver of this issue, we do not find preju- dice to Appellant. If there was error in the severance of Maj SS, the Defense has not established that this error produced a material prejudice to the sub- stantial rights of Appellant. Hutchins, 69 M.J. at 292.

B. Violation of Appellant’s Fourth Amendment Rights On appeal, Appellant asserts that his Fourth Amendment rights were vio- lated during the Government’s investigation of the offenses against him. He claims that Air Force Office of Special Investigations (OSI) agents falsely

United States v. Deloe, No. ACM 25036 (f rev) accused him of being a domestic terrorist to obtain records of Appellant’s Cash App account8 pursuant to the Right to Financial Privacy Act of 1978, 12 U.S.C. § 3401, et seq. At trial, Appellant’s trial defense counsel filed a motion to sup- press transaction documents due to the Government’s late notice and failure to include a certification by a records custodian. However, this motion was later waived pursuant to the “waive all waivable motions” term of Appellant’s plea agreement.

1. Law The same law from section II.A.1 above applies here.

“An unconditional guilty plea generally waives all pretrial and trial defects that are not jurisdictional or a deprivation of due process of law.” Suarez, 86 M.J. at 71 (quoting United States v. Jones, 69 M.J. 294, 299 (C.A.A.F. 2011)). “[T]he right to be free from unreasonable search and seizure is not judi- cially recognized as a mere abstract principle, but is vindicated by keeping out of evidence the results of the search or seizure.” United States v. Hamil, 35 C.M.R. 82, 83 (C.M.A. 1964). “If a fact is judicially admitted by the accused, no legal or practical purpose can be served by reviewing the propriety of the search which produced some evidence of the conceded fact.” Id. “If there is no legal necessity for the introduction of any evidence whatever, it can hardly be said that admitting some improper evidence on the matter is detrimental to the accused.” Id. 2. Analysis Prior to trial, Appellant’s trial defense counsel filed a motion to suppress evidence of electronic monetary transactions. Appellant knowingly and volun- tarily waived this motion at trial. See Suarez, 86 M.J. at 70. Further, Appellant admitted during his guilty plea inquiry that he and his roommate “would gather funds from the other individuals and then go get them — get the cocaine from [NM].” As such, this claim is extinguished because it is waived. See id. at 70–71. And no purpose can be served by reviewing the propriety of the search which produced evidence of Appellant’s concession that he procured funds from his friends to purchase cocaine. See Hamil, 35 C.M.R. at 83.

III. CONCLUSION The findings as entered are correct in law. Article 66(d), UCMJ, 10 U.S.C. § 866(d), Manual for Courts-Martial, United States (2024 ed.) (2024 MCM). In

United States v. Deloe, No. ACM 25036 (f rev) addition, the sentence as entered is correct in law and fact, and no error mate- rially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court