United States v. Zimmerman ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.R. MCFARLANE, M.C. HOLIFIELD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
KELVIN L. ZIMMERMAN
SERGEANT (E-5), U.S. MARINE CORPS
NMCCA 201300350
SPECIAL COURT-MARTIAL
Sentence Adjudged: 16 May 2013.
Military Judge: LtCol Elizabeth A. Harvey, USMC.
Convening Authority: Commanding Officer, 9th Marine Corps
District, Western Recruiting Region, Marine Corps Recruit
Depot, San Diego, CA.
Staff Judge Advocate's Recommendation: LtCol J.E. Ming,
USMC.
For Appellant: LT Carrie E. Theis, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; LT Ann E.
Dingle, JAGC, USN.
11 December 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A special court-martial composed of officer and enlisted
members convicted the appellant, contrary to his pleas, of three
specifications of violating a lawful general order and one
specification of making a false official statement, in violation
of Articles 92 and 107, Uniform Code of Military Justice, 10
U.S.C. §§ 892 and 907. The appellant was sentenced to
confinement for sixty days, forfeiture of $758.00 pay per month
for two months, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the adjudged
sentence and except for the bad-conduct discharge, ordered it
executed.
On appeal, the appellant contends: (1) that the military
judge erred by denying the challenge for cause against Gunnery
Sergeant (GySgt) L, a member of the panel; (2) that the evidence
adduced at trial was legally and factually insufficient; (3)
that the appellant’s sentence was inappropriately severe; and,
(4) that the Commandant of the Marine Corps (CMC) exerted
unlawful command influence (UCI) on the court-martial through a
series of lectures known as the “Heritage Briefs.”
After carefully considering the parties’ pleadings, the
appellant’s allegations of error, and the record of trial, we
conclude that the findings and the sentence are correct in law
and fact and that no error prejudicial to the substantial rights
of the appellant was committed. Arts. 59(a) and 66(c), UCMJ.
Background
While serving as a Marine Corps Recruiter at the Recruiting
Substation Peoria, Illinois in the spring of 2012, the appellant
developed an inappropriate relationship with two young women
whom he was formally recruiting to join the Marine Corps. In his
position as a Marine Corps recruiter the appellant met AS.
During her recruitment, the appellant overtly discussed subjects
of a sexual nature with her and eventually began communicating
with her via his personal cell phone. Over the course of
several weeks the appellant had sexual intercourse with AS on
multiple occasions and used the recruiting station Government
vehicle to transport her to and from their sexual venues.
The appellant also developed an inappropriate relationship
with CK while she was still in the process of recruitment. He
began texting her from his personal cell phone and eventually CK
sent sexually provocative photographs of herself to him via text
message. The appellant and CK also sent each other sexually
explicit text messages.
2
Additional pertinent facts are provided as necessary to
discuss the appellant’s assignments of error.1
Challenge for Cause
In his initial assignment of error (AOE), the appellant
avers that the military judge erred by not granting the
defense’s challenge for cause against GySgt L on the grounds of
implied bias.
A panel member may be removed for cause if such removal is
in the “interest of having the court-martial free from
substantial doubt as to legality, fairness, and impartiality.”
RULE FOR COURTS-MARTIAL 912(f)(1)(N), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.). This rule applies to both implied and actual
bias.2 Implied bias exists “when most people in the same
position as the court member would be prejudiced.” United
States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citations
omitted). The test to determine substantial doubt about the
fairness and impartiality of the trial is evaluated objectively,
“through the eyes of the public.” United States v. Townsend, 65
M.J. 460, 463 (C.A.A.F. 2008) (quoting United States v.
Schlamer, 52 M.J. 80, 92-93 (C.A.A.F. 1999)) (additional
citation omitted). “[I]ssues of implied bias are reviewed under
a standard less deferential than abuse of discretion but more
deferential than de novo.” United States v. Strand, 59 M.J.
455, 458 (C.A.A.F. 2004) (citation and internal quotation marks
omitted). Finally, “when there is no actual bias, ‘implied bias
should be invoked rarely.’” United States v. Warden, 51 M.J.
78, 81-82 (C.A.A.F. 1999) (quoting United States v. Rome, 47
M.J. 467, 469 (C.A.A.F. 1998).
The appellant’s argument is two-fold. First, during group
voir dire of the panel the military judge asked the following
question: “[i]f you are selected as a member of the case, can
you . . . decide this case solely upon the evidence presented in
this court-martial and the law that I instruct you upon?”
Record at 69. The military judge asked the members to raise
their hands to indicate an affirmative response to the question.
GySgt L did not raise his hand which was deemed to be a negative
response by the military judge. Id. Secondly, after GySgt L
1
Both AS and CK enlisted in the United States Marine Corps and testified at
the appellant’s trial. At the time of trial AS was a private first class and
CK was a lance corporal.
2
The appellant does not allege and the record does not reflect any actual
bias by GySgt L and we will limit our discussion and analysis accordingly.
3
left a previous assignment as a Marine Corps Recruiter in Costa
Mesa, California, he learned that his supervisor at the
Recruiting Station was court-martialed for recruiter misconduct
similar to that with which the appellant was charged and this
somehow tainted his ability to sit fairly and impartially at the
appellant’s court-martial.
Voir Dire Response
Raised for the first time on appeal, we note that the trial
defense counsel did not challenge GySgt L based upon his
response to the aforementioned question. R.C.M. 912(f)(4)
provides, inter alia, that “. . . any other ground for a
challenge for cause is waived if the party knew or could have
discovered by the exercise of diligence the ground for challenge
and failed to raise it in a timely manner.” Having not raised
this issue at trial, we find that the appellant forfeited his
right to challenge GySgt L on that basis.
We additionally note that R.C.M. 912(f)(4) allows the
military judge, in the absence of a challenge or waiver of a
challenge by the parties, to excuse a member “in the interest of
justice” where a challenge for cause would lie. After his
response to the question above, group voir dire continued and
GySgt L, in concert with the rest of the members, provided
responses which did not give the military judge or either
counsel pause for concern as to GySgt L’s impartiality or
fitness to serve as a member. To the contrary, obviously
content with GySgt L’s answers to the remainder of the group
voir dire questions, neither the military judge, the trial
counsel, nor the trial defense counsel asked any follow up
questions during individual voir dire with respect to GySgt L’s
response to the aforementioned question. After thoroughly
reviewing GySgt L’s responses during group and individual voir
dire, we find no basis to support a challenge for cause for
actual or implied bias. Accordingly, we find the “interest of
justice” did not warrant sua sponte excusal of GySgt L by the
military judge and that there was no plain error.
Prior Exposure to Alleged Recruiter Misconduct
The appellant next contends that the military judge erred
by not granting the trial defense counsel’s challenge for cause
based on implied bias in that GySgt L indicated during
individual voir dire that he learned one of his former bosses
from when he was on recruiting duty was court-martialed for
having “sexual relations” with a poolee. Record at 149. GySgt
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L indicated that although he had executed permanent change of
duty station orders prior to the conclusion of his former boss’s
case and did not know first-hand the result of the court-
martial, he heard that his former boss was kicked out of the
Marine Corps and reduced to private. GySgt L further indicated
that he did not verify this information and that he heard it
“word of mouth”. Id. at 150. GySgt L also stated during
individual voir dire that he understood each court-martial was
unique, and that he would be able to assess the evidence in this
particular court-martial before he came to any conclusion. Id.
at 150-55.
The trial defense counsel challenged GySgt L for cause
based on implied bias and argued:
[GySgt L has] experience where a former supervisor –
he just heard was court-martialed and received a BCD
and reduction to E-1. And it sounds like it was at
least one allegation similar to [the appellant’s]. So
he may have in his mind what he thinks is appropriate
as a result of a hearing rumor mill – what happens
when you get RFCd for poolee misconduct. That’s the
only – I think that’s the only case that he had heard
of a court-martial happening. So he may come with
that mindset that that’s what happens it [sic] you are
guilty.
Id. at 159.
The appellant now argues that the military judge abused his
discretion by denying the challenge for cause against GySgt L
based upon the aforementioned information.
Based upon his responses during individual voir dire, the
military judge denied the challenge for cause against GySgt L.
The military put his analysis and conclusions on the record and
stated:
[GySgt L] left the recruiting station before that case
was adjudicated. And that he heard that there was a
punitive discharge or that he had been kicked out, I
think is what he said and reduction to E-1, but he
didn’t know anything more about it.
The government asked him in follow up whether or not
he understood that each case is individual and that he
would have to adjudge this one on the facts and the
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law presented here. He said, he would. Based on his
conduct in the court and, again, with all of these
[other challenges for cause], I do have the liberal
grant mandate.
But in testing for both implied and actual bias, I
also deny the challenge for cause as to Gunnery
Sergeant [L]. I don’t – I asked on numerous occasions
whether or not there’s any sort of set formula or
punishment and he said, no, in general voir dire. And
there’s nothing in individual voir dire that made me
believe that he ascribed the punishment given to
somebody else as some sort or a standard of required
punishment for this case, should the case go to
sentencing.
Id. at 166.
The record reflects that the military judge appropriately
understood the liberal grant mandate and, in denying the
challenge for cause, stated his analysis and application of law
on the record. “A military judge who addresses implied bias by
applying the liberal grant mandate on the record will receive
more deference than one that does not.” United States v. Clay,
64 M.J. 274, 277 (C.A.A.F. 2007). While we review issues of
implied bias under a standard less deferential than abuse of
discretion, “where the military judge places on the record his
analysis and application of law to the facts, deference is
surely warranted.” United States v. Downing, 56 M.J. 419, 422
(C.A.A.F. 2002). After a thorough review of the record, to
include the responses offered by GySgt L during group and
individual voir dire, we too find no evidence of bias -- actual
or implied. Accordingly, we find that the military judge did
not abuse his discretion by denying the trial defense counsel’s
challenge for cause against GySgt L on the theory of implied
bias.
Legal and Factual Sufficiency
In his second AOE, the appellant alleges that the evidence
adduced at trial is legally and factually insufficient to
support his convictions.
The test for legal sufficiency of the evidence is “‘whether
considering the evidence in the light most favorable to the
prosecution, a reasonable fact finder could have found all the
essential elements beyond a reasonable doubt.’” United States
6
v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)). The test for
factual sufficiency is whether we are convinced of the
appellant’s guilt beyond a reasonable doubt, after weighing the
evidence in the record of trial and making allowances for not
having personally observed the witnesses. Turner, 25 M.J. at
325.
As to the violations of a lawful general order, there is no
dispute that the orders against inappropriate relationships
between recruiter and poolee were both in effect and lawful at
the time of the appellant’s interactions with AS and CK.
Additionally, there is little doubt that the appellant had a
duty to obey that order as the Noncommissioned Officer in Charge
of Recruiting Substation Peoria where both AS and CK were being
recruited. The only issue in dispute is whether the appellant
actually failed to obey that order.
The Government’s case in chief relied primarily on
testimony by AS and CK, but was bolstered by additional
testimony by AS’s mother and uncle, black box evidence from a
government vehicle corroborating parts of AS’s testimony,
appellant’s cell phone records, and photographs of text messages
between the appellant and AS.
As to the false official statement charge, the appellant
was convicted of making a false entry into the Marine Corps
Recruiting Information Support System (MCRIS) to the effect that
CK had referred SG to the Marine Corps, thereby authorizing her
promotion to private first class upon completion of boot camp.
There is no dispute that the appellant entered SG into the MCRIS
as a referral of CK as his signature was on the document.
Testimony from SG indicated that while he knew CK, he was not
referred to the Marine Corps by her and that his involvement
with Marine Corps in fact predated CK’s. Record at 350-53.
Testimony from Captain DK, who conducted the investigation into
the allegations made against the appellant, indicated that there
was no individual listed as referring SG on his Prospective
Applicant Card. Id. at 388-89. Capt DK’s testimony and
documentary evidence further indicated that the appellant was
CK’s recruiter, CK’s pool card indicated only one referral, and
yet her MCRIS entry indicated SG was also her referral to bring
her total to the two required for promotion. Id. at 384-86.
Finally, testimony from CK - against her own interest -
indicated that the appellant had agreed to put SG as a referral
for CK if she could bring another recruit up to the minimum
7
physical standard requirement, a task which she accomplished.
Id. at 310-11.
Given these facts, we have little difficulty finding that
the members had a factual basis to find the appellant guilty
beyond a reasonable doubt. On balance, and with due regard for
the fact that we did not observe the witnesses, we too are
convinced of the appellant's guilt beyond a reasonable doubt.
We find this assignment of error to be without merit.
Sentence Appropriateness
In his third AOE, the appellant avers that the sentence
adjudged by the members is inappropriately severe. He asks that
this court affirm only so much of the sentence that calls for
reduction to pay grade E-1 and 60 days’ confinement.
“Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves.” United States v. Healy, 26 M.J. 394,
395 (C.M.A 1988). This requires “‘individualized consideration’
of the particular accused ‘on the basis of the nature and
seriousness of the offense and character of the offender.’”
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)
(quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81 (C.M.A.
1959)).
After reviewing the entire record and the pleadings by both
parties, we find that the sentence is appropriate for this
offender and his offenses. United States v. Baier, 60 M.J. 382,
384-85 (C.A.A.F. 2005); Healy, 26 M.J. at 395-96; Snelling, 14
M.J. at 268. Any consideration of appellant’s requested relief
would amount to an act of clemency which is left to the “command
prerogative” of the convening authority. Healy, 26 M.J. at 396.
Unlawful Command Influence
In his final assignment of error, the appellant argues that
apparent UCI flowing from the CMC’s Heritage Brief3 infected his
trial. The appellant alleges that the Commandant’s Heritage
3
For a more thorough description of the Heritage Brief, see United States v.
Howell, No. 201200264, 2014 CCA LEXIS 321, unpublished op. (N.M.Ct.Crim.App.
22 May 2014).
8
Brief constituted apparent unlawful command influence and as a
remedy asks this court to set aside the findings and sentence.4
When raised on appeal, the appellant carries the initial
burden of showing “some evidence” of (1) facts that, if true,
constitute UCI; (2) that the proceedings were unfair; and (3)
that the UCI was the cause of the unfairness. United States v.
Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013) (citing United States
v. Richter, 51 M.J. 213, 224 (C.A.A.F. 1999)). Although this
initial threshold may be low, it requires more than “mere
allegation or speculation.” Id. (citing United States v.
Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002)).
In his appeal, the appellant focuses on the appearance of
unlawful influence. Appellant’s Brief of 17 Jan 2014 at 18.
The test for the appearance of UCI is objective. “We focus upon
the perception of fairness in the military justice system as
viewed through the eyes of a reasonable member of the public.”
United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006). An
appearance of UCI arises “where an objective, disinterested
observer, fully informed of all the facts and circumstances,
would harbor a significant doubt about the fairness of the
proceeding.” Id. We review allegations of UCI de novo. United
States v. Harvey, 64 M.J. 13, 19 (C.A.A.F. 2006).
Assuming arguendo that the appellant sufficiently raised
the issue, we conclude beyond a reasonable doubt that any
appearance of UCI was sufficiently ameliorated. During the
group voir dire of potential panel members, the military judge
sua sponte asked the members if they had attended any of the
speeches the CMC made during the spring of 2012 which became
known as the Heritage Brief. Eight of the ten potential members
had attended the event in person and one potential member had
either read articles about it, seen the video, or had heard
comments about it. The military judge asked several follow-up
questions to determine what impact, if any, the CMC’s comments
had upon the potential members. All potential members indicated
that they felt no pressure to find the appellant guilty or to
give the appellant a particular sentence if he was found guilty
of any offense. Evidently satisfied with the responses by the
members, the trial defense counsel did not challenge any member
for cause due to their exposure to the Heritage Brief comments
and did not make a motion for any kind of relief alleging UCI.
4
The appellant does not allege nor do we find any evidence of actual UCI in
the record and we therefore limited our discussion and analysis accordingly.
9
After reviewing the entire record, we conclude beyond a
reasonable doubt that, assuming the issue was appropriately
raised, any appearance of unlawful influence “had no prejudicial
impact on the [appellant’s] court-martial.” United States v.
Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010) (citing United States
v. Biagase, 50 M.J. 143, 150-51 (C.A.A.F. 1999)).
Conclusion
The findings and the sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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