United States v. Gattis ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Cameron M. GATTIS
Cryptologic Technician (Collection) First Class (E-6), U.S. Navy
Appellant
No. 202000252
Decided: 25 August 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Wilbur Lee (arraignment)
Ann K. Minami (motions and trial)
Sentence adjudged 10 August 2020 by a general court-martial con-
vened at Joint Base Pearl Harbor–Hickam, Hawaii, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment: re-
duction to E-1, total forfeiture of all pay and allowances, confinement
for 36 months, and a bad-conduct discharge.
For Appellant:
Captain Kimberly D. Hinson, JAGC, USN
For Appellee:
Lieutenant Nicholas J. Hathaway, USCG
Lieutenant Gregory A. Rustico, JAGC, USN
Chief Judge MONAHAN delivered the opinion of the Court, in which
Senior Judge STEPHENS and Judge DEERWESTER joined.
United States v. Gattis, NMCCA No. 202000252
Opinion of the Court
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
MONAHAN, Chief Judge:
Appellant was convicted, pursuant to his pleas, of one specification of at-
tempted sexual assault of a child, in violation of Article 80, Uniform Code of
Military Justice [UCMJ], 10 U.S.C. § 880.
Appellant asserts one assignment of error: his court-martial was tainted
by actual and apparent unlawful command influence [UCI] stemming from
his chain of command forbidding members of the command from talking with
defense attorneys. 1 We find no prejudicial error and affirm.
I. BACKGROUND
In February 2020, Appellant was apprehended at an on-base residence.
He arrived at the residence with condoms and was planning to meet a 14-
year-old girl for sex. Unbeknownst to him, the 14-year-old girl with whom he
had online communications was actually an undercover military law en-
forcement agent.
Appellant was assigned to Navy Information Operations Command
[NIOC] Hawaii, whose primary mission is intelligence operations. Much of
the command’s work is classified or of a sensitive nature. Appellant was
assigned to the N3A/N3B division within NIOC Hawaii, and stood the com-
mand’s battle watch.
One of the division chiefs within N3A/N3B was Chief Cryptologic Techni-
cian (Collection) [CTRC] (E-7) Wilson. 2 He worked with Appellant on the
command’s battle watch from February 2019 to February 2020. The two
Sailors had served together as E-6s, and CTRC Wilson had continuing con-
tact with Appellant while he was in pretrial confinement.
1 The assignment of error was raised pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982).
2 All names used in this opinion, except those of the judges, counsel, and Appel-
lant are pseudonyms.
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United States v. Gattis, NMCCA No. 202000252
Opinion of the Court
One morning in April 2020, CTRC Wilson received a call while he was tel-
eworking at home. The call was from a defense investigator who was seeking
character information about a Sailor, Cryptologic Technician (Collection)
Third Class [CTR3] (E-4) Sierra, who had previously worked for him in
N3A/N3B and who was then assigned to another department at NIOC Ha-
waii. CTRC Wilson was caught off-guard by these questions because he was
not aware that CTR3 Sierra was involved in any legal proceeding. Despite
this, CTRC Wilson provided the investigator his opinion regarding
CTR3 Sierra, who was a potential government witness in a court-martial
unrelated to Appellant’s case. After that phone conversation ended,
CTRC Wilson called his senior chief to report the matter. The senior chief
told CTRC Wilson that instead of speaking with the investigator, he should
have referred him to the command’s legal office. The senior chief also told
CTRC Wilson to email the command master chief and the staff judge advo-
cate [SJA] to summarize his conversation with the investigator, and
CTRC Wilson complied.
Command Master Chief [CMC] Charlie (E-9), the Command Master Chief
of NIOC Hawaii, received notifications that morning that some of the chiefs
at the command were getting calls about one of their Sailors from someone
purporting to be a defense counsel. CMC Charlie was concerned because
usually the command’s SJA would let him know when defense counsel might
call members of the command. He understood the caller was “looking for
dirt” 3 about the Sailor in question, CTR3 Sierra, and he thought that the
caller could be a foreign intelligence officer.
Because he was concerned about the calls and was unable to verify that
they were legitimate inquiries, CMC Charlie sent a message on the “Slack”
web application to quickly and forcefully get the message out to the members
of the Chief Petty Officers’ [CPO] Mess. The message stated:
If a Defense Attorney calls you about one of your Sailors (or
any Sailor at NIOC Hawaii), you are not authorized to talk to
them. You will point them to our Legal Office at [phone num-
ber], then inform your [Department Leading Chief Petty Of-
ficer] & [Senior Enlisted Leader], who will pass it on to me.
3 R. at 26.
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Opinion of the Court
If you do not know what I’m talking about, good, it doesn’t
apply to you. Conversation already had with the person it ap-
plies to. 4
Upon receipt of CMC Charlie’s message, Chief Cryptologic Technician (In-
terpretive) [CTIC] (E-7) Smith, who along with CTRC Wilson, was one of the
co-division chiefs for N3A/N3B, forwarded it to Appellant’s entire division.
When the defense investigator called back to have CTRC Wilson speak
with the defense attorney in the case involving CTR3 Sierra, CTRC Wilson
told him that he did not feel comfortable doing so and referred him to the
command’s SJA.
Shortly after sending the Slack message to the CPO Mess, CMC Charlie
learned from the NIOC Hawaii SJA that the calls from the defense investiga-
tor were legitimate and that command personnel were authorized to speak
with defense or government counsel if they wanted to. CMC Charlie then
called CTRC Wilson to clarify that he could speak to any defense counsel if he
wished to do so. Additionally, the NIOC Hawaii SJA both emailed and called
CTRC Wilson to ensure that he understood that he was permitted to speak
with defense counsel if he wanted to.
Approximately three hours after he sent his first message to the CPO
Mess, CMC Charlie sent out the following message to that group on Slack:
I need to correct what I put out earlier. JAG gave me feed-
back that no one can be “denied” from talking to an attorney
about a Sailor. That is illegal to do so. Just want to be clear
about that.
However, if you are uncomfortable doing so, you are highly
encouraged to point them to the Legal office.
Appreciate you all and thanks to everyone for taking care of
our Sailors (and each other) during this global crisis. 5
The same day, when the defense investigator called back again,
CTRC Wilson agreed to speak to the defense counsel and to provide character
testimony favorable to the defense in the case involving CTR3 Sierra.
After receiving the second message from CMC Charlie, CTRC Wilson and
CTIC Smith posted the corrected guidance in a pass-down log for watch-
4 App. Ex. III at 21.
5 Id. at 31.
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Opinion of the Court
standers, held a divisional training on the issue, and made phone calls to the
Leading Petty Officers of their division to ensure that everyone within
N3A/N3B received the clarification that all were authorized to speak to
defense attorneys.
In June 2020, the Commanding Officer of NIOC Hawaii sent an email to
all hands at the command, educating them on what UCI is. She also stated
that Sailors are authorized to speak to counsel or provide character witness
testimony, and that the command was supportive of them doing so.
In Appellant’s case, CTRC Wilson did speak to Trial Defense Counsel
[TDC], and was asked by TDC to testify on Appellant’s behalf. However, he
was unsure whether he wanted to do so. He explained during testimony on
Appellant’s motion to dismiss due to UCI that his hesitation to testify was
not related to CMC Charlie’s message to the CPO Mess. Rather, his reluc-
tance was due to the nature of the allegations against Appellant.
Prior to Appellant’s entrance into a plea agreement with the convening
authority, he had requested the production of three character witnesses at
trial. One witness was his wife. The second witness was a senior chief from
NIOC Hawaii, with whom Appellant had also served at two previous com-
mands. The third witness was a chief who had previously worked with him at
NIOC Hawaii. The Government agreed to produce each of these witnesses for
testimony at trial.
Ultimately, Appellant pleaded guilty to one specification of attempted
sexual assault of a child. Pursuant to his plea agreement with the convening
authority, Appellant “specifically agree[d] to waive all motions except those
that are non-waivable pursuant to [Rule for Courts-Martial] 705(c)(1)(B) or
otherwise.” 6
CTRC Wilson did not testify during Appellant’s sentencing proceeding.
II. DISCUSSION
A. Standard of Review and the Law
We review allegations of UCI de novo. 7 Article 37(a), UCMJ, prohibits
UCI. This prohibition includes attempts to interfere with access to witness-
6 App. Ex. XV at 4.
7 United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013).
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es. 8 There are two types of UCI that can arise in the military justice system:
actual UCI and apparent UCI. 9 Actual UCI occurs when there is an improper
manipulation of the criminal justice process which negatively affects the fair
handling and/or disposition of a case. 10 Apparent UCI occurs when, “an
objective, disinterested observer, fully informed of all the facts and circum-
stances, would harbor a significant doubt about the fairness of the proceed-
ing.” 11
The defense has the initial burden of raising the issue of UCI. 12 To raise
the issue, the defense must (1) show facts which, if true, constitute UCI;
(2) show that the proceedings were unfair; and (3) show that UCI was the
cause of the unfairness. 13 “The threshold for raising the issue at trial is low,
but more than mere allegation or speculation.” 14 The evidentiary standard is
“some evidence.” 15 Thus, at trial, “the accused must show facts which, if true,
constitute [UCI], and that the alleged [UCI] has a logical connection to the
court-martial, in terms of its potential to cause unfairness in the proceed-
ings.” 16
“Once the issue is raised at the trial level, the burden shifts to the Gov-
ernment, which may either show that there was no UCI or show that the UCI
will not affect the proceedings.” 17 The burden of disproving the existence of
UCI or proving that it did not affect the proceeding does not shift until the
defense meets the burden of production. 18 If the defense meets that burden,
then UCI is raised at the trial level, and consequentially, a presumption of
prejudice is created. 19 To affirm in such a situation, a reviewing court must
8 United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010).
9 United States v. Boyce, 76 M.J. 242, 247 (C.A.A.F. 2017).
10 Id.11 Id. at 249 (quoting United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006)).
12 United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999).
13 Id.14 Id. (citation omitted).
15 Id. (citation omitted).
16 Id. (citations omitted).
17 Id. (citation omitted).
18 United States v. Ayala, 43 M.J. 296, 299 (C.A.A.F. 1995).
19 Douglas, 68 M.J. at 354.
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be convinced beyond a reasonable doubt that the UCI had no prejudicial
effect on the court-martial. 20 “[P]rejudice is not presumed until the defense
produces evidence of proximate causation between the acts constituting [UCI]
and the outcome of the court-martial.” 21
In United States v. Boyce, the Court of the Appeals for the Armed Forces
[CAAF], reversed the findings and sentence in a sexual assault case on the
basis of apparent UCI, despite finding no prejudice suffered by the appel-
lant. 22 In dissent, Judge Ryan expressed her disagreement with the majority,
reasoning, “I posit that Congress had good reason to tether appellate relief to
Article 59(a)’s requirement of prejudice to the accused . . . .” 23
Less than three years after CAAF issued its opinion in Boyce, Congress
amended Article 37, UCMJ, (“Command influence”) to require a showing of
material prejudice to the substantial rights of the accused before a finding or
sentence of a court-martial may be held incorrect on the ground on a violation
of that section. 24 The effective date of this amendment to Article 37, UCMJ,
was 20 December 2019. 25
Acts of apparent UCI committed prior to the effective date of the revision
to Article 37, UCMJ did not require a showing of prejudice to an accused to
constitute a meritorious claim of UCI. 26 Under the prior framework, once an
accused showed “some evidence” of UCI, the burden shifted to the govern-
ment to prove beyond a reasonable doubt that either a) the predicate facts
proffered by the accused did not exist, or b) the facts as presented did not
constitute unlawful command influence. 27 If the government was unable to
20 Id.
21 Biagase, 50 M.J. at 150.
22 Boyce, 76 M.J. at 253.
23 Id. at 256.
24 “No finding or sentence of a court-martial may be held incorrect on the ground
of a violation of this section unless the violation materially prejudices the substantial
rights of the accused.” 10 U.S.C. 837(c).
25National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92,
§ 532(c), 133 Stat. 1361 (2019).
26 United States v. Proctor, ___ M.J. ___, No. 20-0340, 2021 CAAF LEXIS 509 at
*13 (C.A.A.F. Jun. 2, 2021). The alleged act of UCI in Proctor occurred prior to the
effective date of the revision to Article 37(c), UCMJ.
27United States v. Bergdahl, 80 M.J. 230, 234 (C.A.A.F. 2020) (internal citations
omitted).
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meet that burden, then it was required to prove beyond a reasonable doubt
that the UCI “did not place an intolerable strain upon the public’s perception
of the military justice system and that an objective, disinterested observer,
would not harbor a significant doubt about the fairness of the proceeding.” 28
Under this analysis, the only prejudice required to be shown was that done to
the “public’s perception of the military justice system as a whole.” 29 Yet, even
under the prior framework, a significant factor in determining whether the
UCI created an intolerable strain on the public’s perception of the military
justice system was still whether the “appellant was not personally prejudiced
by the [UCI], or that the prejudice caused by the [UCI] was later cured.” 30
As our sister court recently observed in United States v. Alton, the change
to Article 37, UCMJ, at issue seems to vitiate the prior apparent UCI “intol-
erable strain / disinterested observer” jurisprudence in favor of Judge Ryan’s
approach in her dissent in Boyce. In it, she argued that CAAF’s apparent UCI
cases (including the Boyce majority) were in tension with the Article 59(a),
UCMJ, prejudice requirement. 31
Finally, military courts draw a distinction between UCI during the accu-
satorial process (i.e., the preferral, forwarding, and referral of charges) and
UCI during the adjudicative stage (i.e. interference with witnesses, judges,
members, and counsel). 32 An accused forfeits claims of accusatory UCI if they
are not raised at trial. 33 CAAF has declined to apply waiver of UCI arising in
the adjudicative process by the mere “failure to object or call the matter to
the military judge’s attention.” 34 However, an appellant may “initiate an
28 Id. (internal quotation and citation omitted).
29 Proctor, __ M.J. at __, 2021 CAAF LEXIS 509 at *13 (quoting Boyce, 76 M.J. at
248).
30 Id. (quoting Boyce, 76 M.J. at 248 n.5).
31 United States v. Alton, No. ARMY 20190199, 2021 CCA LEXIS 269 *13-14 n.5
(Army Ct. Crim. App. Jun. 2, 2021) (unpublished). See Boyce, 76 M.J. at 256 (Ryan,
J., dissenting).
32 United States v. Weasler, 43 M.J. 15, 17–18 (C.A.A.F. 1995).
33 United States v. Drayton, 45 M.J. 180, 182 (C.A.A.F. 1996).
34 United States v. Baldwin, 54 M.J. 308, 310 n.2 (C.A.A.F. 2001); see also Doug-
las, 68 M.J. at 356 n.7 (considering appellant’s “acquiescence and silence” on issues of
waiver but noting that “this Court has not applied the doctrine of waiver where
unlawful command influence is at issue.”(citing United States v. Johnston, 39 M.J.
242, 244 (C.A.A.F. 1994)); Johnston, 39 M.J. at 244 (noting “[UCI] is not waived by
failure to raise at trial.”)
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Opinion of the Court
affirmative and knowing waiver of an allegation of [UCI] . . . in order to
secure the benefits of a favorable [plea] agreement.” 35 “[W]aiver is the inten-
tional relinquishment or abandonment of a known right.” 36 As a general
matter, when an appellant “intentionally waives a known right at trial, it is
extinguished and may not be raised on appeal.” 37
B. Appellant Waived the Issue of UCI in His Plea Agreement
We are satisfied that Appellant affirmatively, knowingly, and consciously
waived potential UCI issues and remedies in his case. TDC and Appellant
were aware of the facts and circumstances surrounding CMC Charlie’s
message to the CPO Mess, which was later forwarded to Appellant’s entire
division. Indeed, Appellant brought a motion to dismiss the charge and
specifications based on that occurrence. Approximately one week after the
military judge issued her ruling denying the Defense motion to dismiss,
Appellant entered into a plea agreement with the convening authority that
contained a “waive all waivable motions” provision, entered unconditional
pleas of guilty, and in no way sought to preserve the UCI issue for appeal.
During the guilty plea proceeding, the military judge confirmed that Ap-
pellant read over his plea agreement carefully and discussed it with TDC
before he signed it. Appellant also confirmed in open court that he understood
the terms of his agreement. He agreed that both parties, including himself,
would be bound by the terms of the agreement. And, although the military
judge did not specifically address the “waive all waivable motions” provision
with him, Appellant declined to have the military judge explain it to him
when she asked him, “are there any other paragraphs or specially negotiated
provisions that you want me to cover with you in more depth?” 38 Thus, we
find that with regard to the issue of waiver of the motion to dismiss on the
grounds of UCI that he had previously raised, Appellant intentionally relin-
quished a known right, as opposed to merely demonstrated “acquiescence and
silence” to potential UCI in his case. 39
35 Weasler, 43 M.J. at 19.
36 United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (internal quotations
and citations omitted).
37 Id.38 R. at 110.
39 See Douglas, 68 M.J. at 356.
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We also considered whether we should exercise our authority to consider
Appellant’s UCI claim under Article 66(c), UCMJ, despite his waiver. 40 Given
the facts and circumstances presented here, we decline to do so.
C. Assuming Arguendo Appellant Did Not Waive the Issue of UCI,
the Government Has Established Beyond a Reasonable Doubt That
the Facts Do Not Constitute Actual UCI
Assuming arguendo that Appellant did not waive UCI at the trial level,
he has satisfied his initial burden of showing some evidence which, if true,
would constitute UCI. Specifically, CMC Charlie’s initial message, sent to the
NIOC Hawaii CPO Mess and subsequently forwarded to Appellant’s entire
division, said that command personnel were not authorized to speak with
defense counsel who called. However, the Government has demonstrated
beyond a reasonable doubt that the facts do not constitute actual UCI.
Certainly, CMC Charlie’s message to the CPO Mess was poorly worded.
At first blush, the message appeared to interfere with the rights of Sailors
accused of offenses whose defense counsel were appropriately attempting to
interview potential witnesses. Yet, the Government has established that this
message was not an improper manipulation of the criminal justice process.
Although the message stated that NIOC Hawaii personnel were not author-
ized to speak with defense attorneys who called, the very next sentence in the
message directed command personnel to refer any such inquiry to the com-
mand’s legal office. We are persuaded beyond a reasonable doubt, as was the
military judge, that CMC Charlie’s intent in sending such a quick and strong
message was to attempt to stop the impact of unusual inquiries made to
members of the command that he could not confirm were legitimate inquiries.
These inquiries were unusual to him because typically the SJA would give
the command advance notification if counsel may be calling. By instructing
personnel to refer any such inquiries to the legal office, CMC Charlie clearly
demonstrated that he was not trying to improperly manipulate the criminal
justice process. Rather, he was trying to ensure the proper criminal justice
process was being followed without compromising NIOC Hawaii’s personnel
or its mission.
Thus, that portion of CMC Charlie’s message directing inquiries to the
legal office was a reasonable action to ensure that any unusual calls to the
command were funneled to the appropriate place where they could be veri-
fied. Such action would alleviate concerns that the caller may be a foreign
40 See United States v. Chin, 75 M.J. 220, 222–24 (C.A.A.F. 2016).
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intelligence officer or that attempts to obtain derogatory information about
CTR3 Sierra were being made for an otherwise nefarious purpose. Once the
legal office became involved, the confusion regarding who was making these
phone calls to the command and why they were making them could be re-
solved. The command was then able to ensure that command members were
aware that the calls from the person purporting to be calling on behalf of a
defense counsel were legitimate and the rights of an accused to obtain wit-
nesses and evidence would be protected.
Even if CMC Charlie’s actions could be considered UCI, the Court finds
the Government has established beyond a reasonable doubt that any UCI did
not prejudice Appellant’s court-martial. Appellant argues that CTRC Wilson’s
willingness to provide character testimony on his behalf was chilled by
CMC Charlie’s initial message which was subsequently forwarded to his
entire division by one of his division’s chiefs. However, we are persuaded,
consistent with CRTC Wilson’s own testimony on the Defense motion to
dismiss, that his hesitation in testifying for the Defense was not because of
anything CMC Charlie said or did, but rather due to the nature of Appellant’s
charged offenses. Our conclusion on this point is strengthened by the fact
that CTRC Wilson ultimately spoke to the defense counsel and agreed to
provide character testimony favorable to the defense in the unrelated case
that involved CTR3 Sierra.
Appellant did not offer any evidence that showed with specificity what
other Defense witnesses besides CTRC Wilson would have testified to on his
behalf but for the circumstances of the distribution of CMC Charlie’s initial
message to the CPO Mess. Moreover, we are convinced beyond a reasonable
doubt that the command’s corrective actions removed any taint of UCI from
Appellant’s access to witnesses and evidence within his division and at NIOC
Hawaii as a whole. Thus, any claim of actual UCI that survived his waiver at
the trial level fails before this Court.
D. Assuming Arguendo Appellant Did Not Waive UCI, No Remedy Is
Available to Him Under the Doctrine of Apparent UCI Due to a Lack
of Prejudice
We find that the Government has established beyond a reasonable doubt
that Appellant did not experience any material prejudice to his substantial
rights. As discussed above, we are persuaded that CTRC Wilson’s hesitation
in testifying for the Defense in this case was not because of anything
CMC Charlie said or did, but rather the nature of Appellant’s charged offens-
es. Additionally, the Government has demonstrated beyond a reasonable
doubt that the corrective actions taken by the command to address the
distribution of CMC Charlie’s message, which on its face prohibited talking to
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defense counsel who called, removed any taint of UCI from Appellant’s case.
At all relevant times in this case, the revised Article 37, UCMJ, was in effect.
Therefore, because there has been no showing of material prejudice to the
substantial rights of Appellant, we are statutorily barred from holding the
findings or sentence in his case to be incorrect on the grounds of apparent
UCI. 41
E. Assuming Arguendo Appellant Did Not Waive UCI and That the
Revised Article 37 Did Not Apply, We Find No Intolerable Strain on
the Military Justice System
Even if we were not so barred, we are confident beyond a reasonable
doubt that such influence “did not place an intolerable strain upon the
public’s perception of the military justice system and that an objective,
disinterested observer, fully informed of all the facts and circumstances,
would not harbor a significant doubt about the fairness of the proceeding.” 42
Here, in an unrelated case, after a defense investigator cold-called potential
witnesses at Appellant’s command whose primary mission involves intelli-
gence operations, the command master chief sent a message that prohibited
command members from speaking to defense attorneys who called and
directed that such calls be referred to the command’s legal office. This action
was motivated by concerns that the calls were placed by an unverified person
with unknown motives. Within approximately three hours, the command
master chief corrected his initial message, and the command took numerous
further steps to ensure that all hands understood that they were permitted,
indeed encouraged, to speak with defense counsel if they chose to do so.
We easily conclude in this particular case a finding of apparent UCI is not
warranted because there was no intolerable strain on the military justice
system. 43 This conclusion is predicated on all the relevant facts of this case,
regardless of whether the various stages of the court-martial are viewed
individually or cumulatively. 44 However, due to the facts and circumstances
of this case, only the guilty plea and sentencing phases of Appellant’s court-
martial could reasonably be expected to have been affected by CMC Charlie’s
message to the CPO Mess and the further distribution of that message to the
41 See 10 U.S.C. 837(c).
42 Proctor, ___ M.J. ___, 2021 CAAF LEXIS 509 at *14 (quoting Bergdahl, 80 M.J.
at 234).
43 See Bergdahl, 80 M.J. at 239.
44 See id.
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members of Appellant’s division. Therefore, we confine our analysis to those
two stages.
Appellant chose to plead guilty to the offense of attempted sexual assault
of a child. In doing so, he explicitly stated in open court that he was voluntar-
ily pleading guilty because he was in fact guilty. 45 During a substantial plea
colloquy, Appellant explained in detail how he met a person whom he be-
lieved to be a 14 year-old female military dependent on an online application,
and that their conversations continued through back-and-forth text messag-
es. He admitted in open court that, although the messages were initially
benign, they progressed to flirtation and innuendo, leading to agreeing to
meet at her on-base residence for sex while her single-parent mother was
away for the night. The conversations between Appellant and the undercover
agent included the need for him to bring condoms and the fact that he had
previously undergone a vasectomy. Based on Appellant’s own words, no
impartial observer would conclude it was the actions of the command master
chief and other members of his chain of command that caused him to plead
guilty. Instead, it was the strength of the Government’s evidence and the
beneficial plea agreement Appellant received which caused him to take that
step. 46 Therefore, no claim of unfairness regarding the guilty plea phase of
the court-martial proceedings can prevail. 47
With regard to the sentencing stage of the proceedings, Appellant ob-
tained the benefit of a plea agreement that limited his confinement exposure
to 36 months, well below the statutory maximum of 20 years for the offense
to which he pleaded guilty. As additional consideration for Appellant’s plea of
guilty, the convening authority agreed that only a bad conduct discharge
would be adjudged, as opposed to a dishonorable discharge, which is other-
wise the mandatory minimum punishment for the offense of attempted
sexual assault of a child. Under the plea agreement, the convening authority
also permitted Appellant to plead not guilty to the charged offense of at-
tempted sexual abuse of a child (indecent communication), and the Govern-
ment did not go forward on that specification. Moreover, due to the multiple
corrective measures taken by NIOC Hawaii command leadership to address
the initial message sent by CMC Charlie, we are satisfied that no potential
defense witnesses for sentencing were chilled from participating in Appel-
45 R. at 110.
46 See Bergdahl, 80 M.J. at 242.
47 See id. at 244.
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lant’s case. Therefore, we find no unfairness regarding the sentencing phase
of the court-martial proceedings.
The totality of these circumstances makes it clear beyond a reasonable
doubt that the action of CMC Charlie in sending his initial message to the
NIOC Hawaii’s CPO Mess, and the action of CTIC Smith who forwarded that
message to Appellant’s entire division, “did not place an intolerable strain
upon the public’s perception of the military justice system and that an objec-
tive, disinterested observer, fully informed of all the facts and circumstances,
would not harbor a significant doubt about the fairness of these proceedings.”
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 48
The findings and sentence are AFFIRMED.
Senior Judge STEPHENS and Judge DEERWESTER concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
48 Articles 59 & 66, UCMJ.
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