United States v. Loiacono ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
Appellate Military Judges
UNITED STATES OF AMERICA
v.
MICHAEL W. LOIACONO
CAPTAIN (O-3), U.S. MARINE CORPS
NMCCA 201200451
GENERAL COURT-MARTIAL
Sentence Adjudged: 27 April 2012.
Military Judge: Col G. W. Riggs, USMC.
Convening Authority: Commander, U.S. Marine Corps Forces
Command, Norfolk, VA.
Staff Judge Advocate's Recommendation: Col D.J. Bligh,
USMC.
For Appellant: LT David Dziengowski, JAGC, USN.
For Appellee: LT Ian MacLean, JAGC, USN.
25 March 2014
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
JAMISON, Judge:
A general court-martial composed of officer members
convicted the appellant, contrary to his pleas, of making a
false official statement and engaging in indecent liberty with a
child in violation of Articles 107 and 120, Uniform Code of
Military Justice, 10 U.S.C. §§ 907 and 920. The members
sentenced the appellant to confinement for six months,
forfeiture of all pay and allowances, and a dismissal. The
convening authority (CA) approved the sentence as adjudged.
The appellant raises nine assignments of error (AOEs).1
After consideration of the pleadings of the parties and the
record of trial, we conclude that the findings and sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant was committed. Arts.
59(a) and 66(c), UCMJ.
Background
The appellant was an activated reservist who re-joined the
1
The appellant raises the following AOEs:
I. When the convening authority (1) stacked the members panel with senior
officers from his personal staff, and (2) pre-decided his case would go to a
court-martial before completion of the Article 32, UCMJ, hearing, did UCI
result? Was appellant’s case further infected by UCI when hostile emails and
water-cooler talk referring to him as a “homosexual pedophile” pervaded the
command and the fiscal chief for MARFORCOM told him that he should plead
guilty to save the command money? If the answer is no, did the convening
authority become a Type 3 accuser here?
II. Was the appellant deprived his Sixth Amendment right to counsel when his
counsel failed to (1) question the members through voir dire on their senior-
subordinate relationship with the convening authority and his chiefs of staff
and (2) investigate exculpatory evidence, plus command emails and water-
cooler talk evincing unlawful command influence?
III. Did the military judge deprive the appellant of critical alibi evidence
when he erroneously denied the defense motion to compel discovery of T.W.’s
Facebook records?
IV. Did the military judge err when he denied the defense motion to sever the
charges because it unfairly put the “pervert factor” in play?
V. Did the military judge err when he admitted, over defense objection, the
reports of internal phone calls and key-card access at the hotel?
VI. Is the evidence alleging indecent liberties with a child legally and
factually insufficient where the Article 32 investigating officer recognized
the “fragile” nature of this charge, and that recognition occurred before it
became known that T.W. admittedly stole IPODs and deleted Facebook messages
to cover it up?
VII. Did the military judge abandon his role as a fair and neutral officer
when he violated his own ruling and elicited inadmissible 404(b) evidence
from a material witness for the prosecution?
VIII. Is a sentence that includes a dismissal inappropriately severe?
IX. Do the significant accumulation of errors in this case require the
setting aside of the findings and sentence?
2
Marine Corps on 15 June 2010. Occupying a billet that belonged
to U.S. Marine Corps Forces Command (MARFORCOM), the appellant
was serving as part of the Joint Enabling Capabilities Command
(JECC) and assigned to U.S. Africa Command (AFRICOM) at the time
of his offenses.
In August of 2011, the appellant was staying in Room 533 at
a hotel in Sindelfingen, Germany. On 18 August 2011, one of the
hotel guests, AN, a German national, received anonymous phone
calls soliciting sexual acts. According to AN, the voice on the
other line was a male voice that spoke English with an American
accent. When AN registered his complaint, hotel management
investigated and determined that the phone calls had come from
within the hotel. At that time, multiple guests had complained
about receiving inappropriate and unsolicited anonymous phone
calls. In response, the manager of the hotel directed the
implementation of a “trap and trace” tracking device that logged
the various room-to-room telephone calls. This tracking device
did not become operational until 23 August 2011.
AN checked out of the hotel on 19 August, but returned on
23 August and checked into Room 521. At 23:57 on 24 August
2011, AN received another anonymous phone call and recognized
the voice as the same person who had called him on 18 August
2011. After he hung up, AN called AS, a traveling companion who
was staying in Room 229. AN had previously told AS about the
anonymous phone calls and both agreed that if the phone calls
started again, AS would assist AN in discovering the identity of
the caller in an effort to make the calls stop. At AN’s request
AS agreed to come up to AN’s room. A few minutes later, AN’s
hotel phone rang again. Wanting to ascertain the identity of
the caller and to stop the phone calls, AN decided to engage the
caller in a conversation.2 The subject matter of the phone call
essentially dealt with a solicitation for a sexual tryst and
culminated in the caller inviting AN to meet in Room 533, the
appellant’s room. The caller told AN that he would be in bed
with the lights off and would leave his door unlocked so AN
could enter. AN and AS proceeded to Room 533. AN found the
door to Room 533 unlocked; he walked in and turned on the lights
in the room. The person in the bed told AN to turn off the
lights and AN recognized the voice as the same voice that had
invited him to the room. AS also entered the room and later
identified the appellant as the person lying in the bed. The
appellant then asked “what are you doing in my room.” Both AN
and AS left the room. On the way out the room, AN saw an
2
The phone call lasted 7 minutes. PE 6.
3
envelope that had Room Number 533 and the name “Loiacono”
written on it. Following this interaction, AN and AS went down
to the hotel reception area to call the police.
At approximately 01:00 to 02:00 on the morning of 25 August
2011, TW, a 14-year-old boy, saw a man whom TW later identified
as the appellant, enter the hotel’s PCS lounge. The PCS lounge
was available to all military members and their dependents. The
lounge contained a computer, a television, a washer and dryer,
and a microwave. The hotel guests who were authorized to access
the PCS lounge had a special code programmed on their hotel room
key card that gave them 24-hour access to the lounge.
TW had been in the PCS lounge for two to three hours doing
laundry, watching movies, and using the PCS lounge’s computer to
check his e-mail and communicate with his friends on Facebook.
When TW first saw the appellant, he was speaking on his
cell phone about having been in his bed asleep and awakened to
find another man in his room. Once the appellant finished his
call, he exchanged pleasantries with TW, and ascertained from TW
that he was 14 years old. The conversation then took an
unpleasant turn. First, the appellant commented on the fact
that, because TW shared his hotel room with his two brothers, he
did not have an unfettered opportunity to masturbate. The
appellant asked TW about girls and then the conversation turned
to oral sex with men and the appellant asked TW if he had ever
been interested in oral sex with men. He also told TW that if
the appellant or any of his male friends were aroused, they
would have oral sex with one another. During their
conversation, the appellant moved closer to TW and sat on a
couch about 10 feet from him. Despite TW’s attempt to change to
subject, the appellant continued to talk to TW in graphic detail
about sexual matters and techniques. During his conversation
with TW the appellant kept rubbing his crotch area through his
shorts. The appellant then said that he needed to make another
phone call and TW left the PCS lounge.
On 18 November 2011, the Government preferred one
specification of a violation of Article 120, two specifications
of a violation of Article 133, and one specification of a
violation of Article 134 (alleging indecent language). On 22
November 2011, the special court-martial convening authority
(SPCMCA) appointed Lieutenant Colonel (LtCol) RB, a judge
advocate, to be the Article 32, UCMJ, Investigating Officer
(IO). The IO completed his report on 19 December 2011,
recommending a general court-martial and the preferral of one
4
additional charge for a violation of Article 107, UCMJ. Based
on the Article 32 investigation, the Government dismissed the
original Article 120 specification, preferred a new Article 120
specification, and preferred one specification of a violation of
Article 107, UCMJ. The SPCMCA forwarded the case to the CA and
on 4 January 2012, the staff judge advocate (SJA) provided his
pretrial advice, recommending referral to a general court-
martial. Record at 199; Art. 34, UCMJ.
On 4 January 2012, the CA referred the original and
additional charges to a standing general court-martial panel.
General Court-Martial Convening Order (GCMCO) 1-11 of 30 March
2011. That panel consisted of two colonels, four lieutenant
colonels, one major, two captains, and one chief warrant officer
5. On 11 April 2012, the CA signed amended GCMCO 1a-11 for the
appellant’s trial in Stuttgart, Germany. Amended GCMCO panel
1a-11 consisted of three colonels, six lieutenant colonels, and
two majors. Pursuant to a delegation by the CA, the SJA excused
one colonel, one lieutenant colonel, and one major. Appellate
Exhibits LVI and LVII.
Once the members had been sworn pursuant to RULE FOR COURTS-
MARTIAL 807(b)(1)(A), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.), the military judge asked the members a series of
preliminary questions. Record at 198. The military judge asked
the members whether they knew the appellant and whether they
knew or had heard anything about the appellant’s case. Id. at
204. Only three members indicated that they knew something
about the case: Colonel (Col) GD, Col AF, and LtCol TC. Id. at
204-05. Col GD testified that he was about to assume duties as
the Chief of Staff for Marine Corps Forces, Europe (MARFOREUR),
and had been doing some preliminary turnover with the current
Chief of Staff when the appellant’s case had come up during
routine turnover conversation. Id. Col AF testified that
during the August or September timeframe of 2011, he recollected
having seen a Serious Incident Report (SIR) regarding the case,
but did not remember any details.3 Id. at 205. LtCol TC
responded that he had heard of the case in his capacity as the
Assistant Chief of Staff G-1 for U.S. Marine Corps Forces,
Africa (MARFORAF). LtCol TC had been tasked by the Chief of
Staff for MARFORAF to ascertain which command the appellant was
3
Based on his responses during group voir dire, the Government requested that
he be subject to individual voir dire. Record at 235. During individual
voir dire, Col AF indicated that once he saw the appellant’s name on the
convening order, he recollected having come across his name in an earlier
SIR, but he had no recollection of what the case was about. Id. at 243.
5
attached to because the incident had occurred in Germany.
LtCol TC testified that he had spent a considerable amount of
time researching what command the appellant was assigned to, and
he also recollected having seen a police report regarding the
incident. Id. at 205-06. During individual voir dire, LtCol TC
indicated that it was challenging to ascertain the appellant’s
parent command because he was an individual mobilization
augmentee who ultimately was part of MARFORCOM, but was on
orders to U.S. Transportation Command.4 Id. at 246-48.
Based on the testimony of the members during group and
individual voir dire, the Government challenged Col GD and
another member, LtCol SY, for cause. Id. at 267. The
appellant’s civilian defense counsel agreed with the
Government’s challenge of Col GD, but disagreed with the
challenge of LtCol SY. Id. at 268-69. The military judge
granted both challenges. Id. at 269. The appellant challenged
LtCol TC and another member, Col MR, for cause. Id. at 270-71.
The military judge granted both challenges. Id. at 271-72. The
appellant exercised his peremptory challenge against LtCol RR.
Id. at 272. The members that were empaneled were as follows:
Col AF, LtCol LV, LtCol MS, LtCol JD, LtCol DD, and Maj MB.5
Additional facts necessary for the resolution of particular AOEs
are included below.
I. Unlawful Command Influence and Accuser Issue
For the first time on appeal, the appellant argues that his
case was infected with actual and apparent unlawful command
influence (UCI) and that certain actions that the appellant
attributes to the CA, transformed the CA into a “type three”
accuser.6 In support, he submits two post-trial affidavits, one
4
The JECC is a subordinate command of U.S. Transportation Command.
5
According to the member questionnaires, at the time of the appellant’s
court-martial, Col AF was the Assistant Chief of Staff G-4, MARFORCOM. LtCol
LV was assigned to MARFORAF as the G-3 Branch Head. LtCol MS was assigned to
MARFORCOM as the G-6 Current Operations Branch Head. LtCol JD was assigned
to MARFORAF as the G-5 Branch Head. LtCol DD was assigned to MARFOREUR as
the G-5 Regional Plans Chief. Major MB was assigned to MARFOREUR as the
Comptroller.
6
The appellant also asserts that his defense counsel team was
constitutionally ineffective by not raising UCI at trial. We address that
claim in AOE II, infra. We note that the appellant’s civilian defense
counsel mentioned UCI in the appellant’s post-trial clemency submission;
however, that claim of UCI concerned a series of speeches that the Commandant
of the Marine Corps (CMC) gave as part of his Heritage Brief. The
appellant’s UCI claim on appeal does not address the CMC’s Heritage Brief.
6
from himself and one from LtCol SC, one of the appellant’s
mentors.7 We begin our analysis with the appellant’s UCI claim
and the standard of review for UCI.
Allegation of Actual and Apparent UCI
The appellant’s UCI allegation is three-fold and focuses on
both the accusatorial and adjudicative stages of his court-
martial. First, he argues that the CA predetermined that the
appellant “would face court-martial regardless of the outcome of
the Article 32 Hearing”8 based on a conversation that the
appellant had with the SPCMCA. Second, the appellant argues
that when Mr. C, the MARFORCOM Fiscal Chief, told the appellant
that his court-martial “was costing the command too much money
and [he] should just accept [his] punishment and save the
command the hassle,” this constituted actual UCI. Appendix 1 to
Appellant’ Brief of 29 Apr 2013, Appellant’s Post-Trial
Affidavit (Appellant’s Affidavit) at 4. Third, the appellant
argues that the CA committed actual UCI by stacking the pool of
potential members with officers from the CA’s personal staff.
The appellant’s apparent UCI allegation recasts the same
three issues above with the added contextual allegation that
various electronic mail submissions and “water-cooler talk”
amongst unspecified staff members of MARFORCOM and the JECC,
which suggested that the appellant’s guilt had been
predetermined, constituted apparent UCI.9 Appellant’s Affidavit
7
We note that LtCol SC testified on the merits during the defense’s case-in-
chief. Record at 509-24. She also testified on the appellant’s behalf in
the presentencing phase of the trial. Id. at 626-29. Additionally, LtCol SC
submitted a letter of support as part of the appellant’s extensive post-trial
clemency petition.
8
Appellant’s Brief of 29 Apr 2013 at 25.
9
Although the appellant mentions eight e-mails in his post-trial affidavit,
he describes only one e-mail with particularity. This was an e-mail from Col
DF (Chief of Staff, MARFORAF) with one of the recipients being Lieutenant
Colonel (Lt Col) BY, U.S. Air Force, among others. The appellant alleges
that the e-mail suggested “he was a homosexual pedophile” and that the Marine
Corps would hold the appellant accountable. Although unclear from the
appellant’s post-trial submission when the alleged e-mail was sent, the
justification for why the e-mail was sent to “multiple people” on the JECC,
MARFORCOM, and MARFOREUR staffs appears to have had more to do with
attempting to ascertain what command would be responsible for holding the
appellant accountable based on the allegations. We base this on LtCol TC’s
testimony during voir dire and LtCol SC’s submission that was part of the
appellant’s clemency petition. We note that nowhere within the appellant’s
or LtCol SC’s affidavit is there a complaint that this e-mail or other e-
7
at 1-2; Appendix 2 to Appellant’s Brief, Affidavit of LtCol SC
at 2.
We disagree and hold that the appellant has failed to meet
his burden of production to demonstrate either actual or
apparent UCI as he has failed to show “proximate causation
between the acts [allegedly] constituting [UCI] and the outcome
of the court-martial.” United States v. Biagase, 50 M.J. 143,
150 (C.A.A.F. 1999) (citing United States v. Reynolds, 40 M.J.
198, 202 (C.M.A. 1994)).
UCI has often been referred to as “the mortal enemy of
military justice.” United States v. Gore, 60 M.J. 178, 178
(C.A.A.F. 2004) (quoting United States v. Thomas, 22 M.J. 388,
393 (C.M.A. 1986)). Even the appearance of UCI has the
potential to be “‘as devastating to the military justice system
as the actual manipulation of any given trial.’” United States
v. Ayers, 54 M.J. 85, 94-95 (C.A.A.F. 2000) (quoting United
States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991)). Apparent UCI
occurs when “a reasonable member of the public, if aware of all
the facts, would have a loss of confidence in the military
justice system and believe it to be unfair.” United States v.
Allen, 31 M.J. 572, 590 (N.M.C.M.R. 1990) (citing United States
v. Rosser, 6 M.J. 267 (C.M.A. 1979)) (additional citation
omitted), aff’d, 33 M.J. 209 (C.A.A.F. 1991).
For appellate consideration of UCI claims, the appellant
bears the burden on appeal to “(1) show facts which, if true,
constitute unlawful command influence; (2) show that the
proceedings were unfair; and (3) show that unlawful command
influence was the cause of the unfairness.” Biagase, 50 M.J. at
150 (citing United States v. Stombaugh, 40 M.J. 208, 213 (C.M.A.
1994)). When analyzing UCI on appeal, we view the alleged UCI
retrospectively in terms of evaluating the actual impact it had
on the completed trial. On appeal, prejudice will not be
presumed unless the appellant can meet his burden to show
“proximate causation between the acts constituting [UCI] and the
outcome of the court-martial.” Id. (citing Reynolds, 40 M.J. at
202)).
For purposes of our analysis, we first consider the
appellant’s UCI claim that occurred during the accusatorial
process before moving to his adjudicative UCI claim.
mails impeded or obstructed the appellant’s access to evidence or witnesses
favorable to his case. In fact, Lt Col BY provided a character statement,
Defense Exhibit H, which was admitted during the merits of the appellant’s
case-in-chief. Record at 494.
8
Allegation of Statement by SPCMCA in the Forwarding Process
The appellant argues that the CA committed actual UCI by
having predetermined that the appellant’s case was going to be
referred to a court-martial, regardless of the outcome of the
Article 32 investigation. The appellant claims the SPCMCA told
him that his case was going to an Article 32 investigation and
that the CA had “decided [the appellant’s case] would move
forward from the Article 32 hearing.” Appellant’s Affidavit at
3.
A. Waiver of UCI in the Accusatorial Process
Prior to considering this aspect of the appellant’s claim
of UCI, we consider whether he waived it by his failure to raise
it before the trial court. Our superior court has noted that
UCI has been used 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.” United States
v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994) (citation omitted).
However, by its clear and unambiguous statutory language,
Article 37, UCMJ, applies solely to courts-martial and military
tribunals.10 Indeed, our superior court has long drawn an
analytical “distinction between the accusatorial process and the
adjudicative stage” of the court-martial proceedings. United
States v. Weasler, 43 M.J. 15, 17 (C.A.A.F. 1995).
In United States v. Richter, 51 M.J. 213 (C.A.A.F. 1999),
the Court of Appeals for the Armed Forces (CAAF) held that
Technical Sergeant Richter’s failure to raise his UCI claim that
his commander had been “coerced into preferring charges” was
waived. Richter, 51 M.J. at 223-24. The CAAF in Richter made
clear that “[d]efects in preferring and forwarding charges are
waived if not raised at trial, unless the failure to raise the
issue is itself the result of unlawful command influence.” Id.
at 224 (citing Hamilton, 41 M.J. at 37); see also R.C.M.
905(b)(1).
10
“No authority convening a general, special, or summary court-martial, nor
any other commanding officer, may censure, reprimand, or admonish the court
or any member, military judge, or counsel thereof, with respect to the
findings or sentence adjudged by the court, or with respect to any other
exercises of its or his functions in the conduct of the proceedings. No
person subject to this chapter may attempt to coerce or, by any unauthorized
means, influence the action of a court-martial or any other military tribunal
or any member thereof, in reaching the findings or sentence in any case . . .
.” Art. 37(a), UCMJ.
9
In this case, applying the CAAF’s analysis in Hamilton and
Richter, we find that by his failure to raise the issue at
trial, the appellant waived his claim of UCI associated with the
forwarding of charges for trial by general court-martial. The
appellant does not allege that the underlying facts were not
available to him at the time of his trial. In fact, he alleges
that he knew and told his civilian defense counsel. Appellant’s
Affidavit at 3. Additionally, the appellant does not claim that
he was “unlawfully deterred from raising the issue.” Richter,
51 M.J. at 224.11 Accordingly, based on the circumstances in
this case, we follow Richter and conclude that the appellant’s
claim of UCI in the forwarding process of his court-martial was
waived by his failure to raise the issue at trial.
B. Merits of UCI Claim During the Forwarding Process
Assuming arguendo that the appellant’s claim of UCI during
the forwarding process was not waived by his failure to raise
the issue at trial, he has failed in his burden of production to
establish UCI (actual or apparent) and link it to his court-
martial. The appellant has not alleged that the SPCMCA was
somehow influenced or coerced into making her recommendation to
forward the case to the CA. We do not interpret the SPCMCA’s
comments to the appellant as proof of the CA’s interference with
her discretion to forward the case. R.C.M. 404(c). Given that
the appellant is a commissioned officer, it is hardly remarkable
that the CA was tracking the case because by Marine Corps Order
the general court-martial convening authority has general
cognizance over the disposition of officer misconduct cases
within his or her command. See Marine Corps Order P5800.16A,
Chapter 4 (Ch-1-7, 31 Aug 1999)
Assuming arguendo that the CA had expressed an intent to
resolve the appellant’s case via the court-martial process, we
discern no prejudice. First, the allegations against the
appellant were of a serious nature. Second, the SPCMCA
appointed a judge advocate in the grade of lieutenant colonel to
be the Article 32 IO. Third, the Article 32 IO recommended
resolution of the appellant’s case via general court-martial.
Fourth, the SPCMCA forwarded the case to the CA with a
recommendation that it be referred to a general court-martial.
11
We note that the CAAF continues to cite to Richter, having cited to the
case as recently as last year. See United States v. Salyer, 72 M.J. 415, 423
(C.A.A.F. 2013). Admittedly, Salyer did not cite to Richter for the waiver
proposition; however, we note that by citing to Richter, the CAAF at least
implicitly acknowledges its continued vitality.
10
Fifth, the SJA recommended disposition of the charges via
general court-martial. Based on the appellant’s post-trial
affidavit, we discern no prejudice or undue influence associated
with the forwarding of these charges and no evidence that this
forwarding process was in any way proximately connected to any
unfairness in the processing of the appellant’s court-martial.
Reynolds, 40 M.J. at 202.
Allegation of Statement by Mr. C
Next, the appellant asserts that the CA committed actual
UCI when Mr. C, the MARFORCOM Fiscal Chief, recommended that the
appellant “accept [his] punishment and save the command the
hassle” because the appellant’s court-martial was costing “too
much money.” Appellant’s Affidavit at 4. We disagree.
Assuming that Mr. C is subject to Article 37, UCMJ, the
appellant’s UCI claim fails for two reasons. First, the
appellant has failed in his initial burden of production to show
that Mr. C’s comment carried with it the “mantle of official
command authority.” Stombaugh, 40 M.J. at 211; see United
States v. Ayala, 43 M.J. 296, 300 (C.M.A. 1995) (rejecting PFC
Ayala’s claim of UCI based on post-trial affidavit because
affidavit lacked evidence of anyone acting with the “mantle of
command authority”). Second, the appellant does not indicate in
his post-trial affidavit that Mr. C’s comment was made with the
intent to coerce or influence the appellant’s decision.
Assuming arguendo that Mr. C’s comments -- devoid of any
evidence of causal connection or imputation to the CA --
constituted UCI, the appellant would not be entitled to relief
because Mr. C’s attempt failed: the appellant had his day in
court. Moreover, there is no evidence any of the empaneled
members knew of Mr. C’s comment or how the comment might have
been, in any way, causally connected to the appellant’s court-
martial. As such, we are convinced beyond a reasonable doubt
that Mr. C’s comment, if made, had no impact upon the findings
and sentence of the appellant’s general court-martial.
Allegation of Court-Stacking
Next, the appellant alleges that the CA committed actual
UCI by assigning senior staff officers from his personal staff
to serve on the appellant’s court-martial. Alternatively, the
appellant argues that by assigning senior staff officers from
his staff, this created apparent UCI. Based on his post-trial
submission, the thrust of the appellant’s claim of UCI centers
on that fact that the CA was in the fitness report chain of
11
these staff officers.12
A CA may not purposefully “stack” a court-martial to
achieve a desired result; officers, otherwise eligible to serve,
may not be excluded from service based solely on their grade.
United States v. Hilow, 32 M.J. 439, 440 (C.M.A. 1991); United
States v. Smith, 27 M.J. 242 (C.M.A. 1988). Court-stacking does
not deprive a court-martial of jurisdiction, but it is a form of
UCI. United States v. Lewis, 46 M.J. 338, 341 (C.A.A.F. 1997)
(citing Hilow, 32 M.J. at 440)).
Although a CA may not select court members to achieve a
desired result, or exclude eligible members based on grade
alone, an accused is not entitled to have a representative
cross-section of the community detailed to his court-martial.
United States v. White, 48 M.J. 251, 254 (C.A.A.F. 1998).
Article 25(d), UCMJ, requires a CA to select court-martial
members who, “in his opinion, are best qualified for the duty by
reason of age, education, training, experience, length of
service, and judicial temperament.” It is permissible for a CA
to look first at more senior officers for qualified court
members; however, a CA may not systematically exclude lower
ranking eligible officers from consideration. United States v.
Crawford, 35 C.M.R. 3, 12 (C.M.A. 1964).
We begin our analysis with the presumption that the CA
acted in good faith and applied the Article 25(d), UCMJ,
criteria conscientiously. United States v. Morrison, 66 M.J.
508, 510 (N.M.Ct.Crim.App. 2008) (citing United States v.
Carman, 19 M.J. 932, 936 (A.C.M.R. 1985)); see also United
States v. Masusock, 1 C.M.R. 32, 36 (C.M.A. 1951) (noting that
there is a long-standing legal presumption of “regularity in the
conduct of governmental affairs”); cf. United States v. Hagen,
25 M.J. 78, 84 (C.M.A. 1987) (holding that within context of
allegation of vindictive prosecution by a CA, “[t]here is a
12
For purposes of our analysis, we will assume -- not find -- the accuracy of
the appellant’s “fitness reporting” assertion. While Col GD (challenged for
cause) was clearly in the fitness reporting chain of the CA, we note our
initial skepticism with regard to the appellant’s claim that the CA was
“either the Reporting Senior or Reviewing Officer for the empaneled, senior
officer members.” Appellant’s Brief at 24. First, two of the empaneled
lieutenant colonels were members on the staff of MARFORAF, LtCol LV and LtCol
JD. The Commanding General, II Marine Expeditionary Force, not the CA, is
double-hatted as the Commanding General, MARFORAF. Second, two of the other
empaneled members were part of the staff of MARFOREUR, LtCol DD and Major MB.
Because MARFOREUR has a Deputy Commanding General in Stuttgart, Germany, and
the CA visits MARFOREUR once every “3, 4 months,” Record at 240, it is
unlikely the CA is the Reviewing Officer for those members.
12
strong presumption that the convening authority performs his
duties as a public official without bias”).
The appellant cites no authority for what amounts to an
argument that a member of a CA’s personal staff is per se
disqualified from consideration as a court-martial member.13
Neither this court nor our superior court has ever held that a
member who is part of a CA’s personal staff is per se excluded
from selection to sit as a member of a court-martial. Indeed,
this type of per se exclusion runs counter to the member-
selection criteria in Article 25(d), UCMJ. In United States v.
Gooch, 69 M.J. 353, 360 (C.A.A.F. 2011), the CAAF held that it
was legally inappropriate “to exclude all potential members who
might have a favorable (or unfavorable) view of an accused”
because a “personal relationship” or “personal knowledge of the
accused” are not appropriate “Article 25, UCMJ, criteria” for
exclusion. Cf. United States v. Bagstad, 68 M.J. 460, 462
(C.A.A.F 2010) (holding that there is no per se exclusion
“predicated solely on the fact that a senior member of the
court-martial is involved in writing or endorsing the
effectiveness reports of junior members”) (quoting United States
v. Murphy, 26 M.J. 454, 456 (C.M.A. 1988). There is but one
appropriate test for whether a member can sit: impartiality and
lack of bias; the principal vehicle to test that premise is voir
dire. Gooch, 69 M.J. at 357 (citing R.C.M. 912(f)(1)(N)).
Because the appellant’s court-stacking claim -- premised on
nothing more than an argument that regardless of factual context
a CA commits per se UCI (actual or apparent) by selecting
members from his personal staff -- has no basis in law, we
reject it.
13
The appellant cites United States v. Greene, 43 C.M.R. 72 (C.M.A. 1970) to
press his UCI claim of improper court-stacking. The facts in Greene are
clearly distinguishable. First, Airman Basic (AB) Greene litigated his claim
before the trial judge. Second, AB Greene produced evidence that suggested
there had been a systematic exclusion of junior officers based on a
memorandum from the SJA, Fifteenth Air Force. The appellant did not allege
any inappropriate court-stacking before entry of his pleas and his per se
claim lacks merit. There is a general statutory requirement that no accused
may be tried by members who are junior in rank or grade. Art. 25(d)(1),
UCMJ. Thus, it was clearly appropriate for the CA to select officer members
in the grade of major and above. Because the appellant premises his court-
stacking argument on a per se exclusion of officers from the CA’s staff that
has no basis in law, and because he has produced no evidence of prejudice, we
find that the appellant has not made a “colorable claim” of member bias
simply because some of the members selected may have been part of the CA’s
personal staff. See United States v. Sonego, 61 M.J. 1, 4 (C.A.A.F. 2005)
(holding that “colorable claim” test is the appropriate test for member bias
sufficient to trigger an evidentiary hearing under United States v. DuBay, 37
C.M.R. 411 (C.M.A. 1967)).
13
Commentary by Staff Members Regarding the Appellant’s Case
Next, the appellant supplements his apparent UCI claim with
allegations of various e-mails and “water cooler” talk on the
part of unspecified individuals that allegedly expressed an
overall hostile attitude towards the appellant and prejudged his
guilt. Appellant’s Affidavit at 1; Affidavit of LtCol SC at 2.
He argues that this hostility on the part of various staff
members, when considered in combination with the above-asserted
allegations attributed to the CA, amounts to apparent UCI.
Assuming arguendo the accuracy of the appellant’s claim, he
has not demonstrated that these comments and e-mails had a
logical connection to the outcome of his court-martial.
Reynolds, 40 M.J. at 202; see Allen, 33 M.J. at 212(holding that
“‘[p]roof of [command influence] in the air, so to speak, will
not do’”) (footnote omitted). The appellant provides no
evidence that any officer who sat on his court-martial was
exposed to the alleged e-mails or was even aware of any staff
member comments. The appellant has not shown how these comments
“could reasonably be perceived as carrying the force of command
influence.” United States v. Simpson, 58 M.J. 368, 375
(C.A.A.F. 2003). Nor has the appellant demonstrated that these
comments or e-mails dissuaded any witness from testifying.
Additionally, during voir dire, the record indicates that
no panel member believed that the CA, or the command, expected
or desired a certain result from the appellant’s court-martial.
Record at 219; see also United States v. Reed, 65 M.J. 487, 492
(C.A.A.F 2008) (evaluating voir dire and member testimony and
finding that the Government met its burden of demonstrating no
apparent UCI). The mere fact that the appellant’s case was the
subject of command attention does not, without more, translate
into UCI. In this regard, he provides no evidence that any of
these comments carried the “mantle of command authority,”
Stombaugh, 40 M.J. at 211, or was attributable to the CA.
Accordingly, we hold that the appellant has failed in his
initial burden of providing evidence that any of the acts or
comments alleged were the proximate cause of, or even causally
connected to, the outcome of his court-martial. Biagase, 50
M.J. at 150; Reynolds, 40 M.J. at 202; Reed, 65 M.J. at 492. We
are also satisfied beyond a reasonable doubt that there was no
UCI (actual or apparent) at any stage of the court-martial
proceedings in this case. Even if the actions the appellant
complained of could somehow be characterized as UCI, we are
14
convinced beyond a reasonable doubt that they had no impact upon
the findings and sentence of this general court-martial.
Type Three Accuser Issue
Next, the appellant claims that his case was briefed “at
every MARFORCOM command update” and that the CA had
predetermined the dispositions of his case prior to the
completion of the Article 32 investigation. Appellant’s
Affidavit at 3-4. Based on these two claims, the appellant
argues that Commander, U.S. Marine Corps Forces Command was
disqualified from serving as CA because he was a “type three”
accuser in that he had an “other than official interest in the
prosecution of the [appellant].” Appellant’s Brief at 27. We
disagree.
Every accused is entitled to have his or her case handled
by an unbiased and impartial CA. United States v. Nix, 40 M.J.
6, 7-8 (C.M.A. 1994). “An accuser may not convene a general or
special court-martial for the trial of the person accused.”
R.C.M. 504(c)(1); see also R.C.M. 601(c). Article 1(9), UCMJ,
defines an “accuser” as: “a person who signs and swears to
charges [“type one” accuser], any person who directs that
charges nominally be signed and sworn to by another [“type two”
accuser], and any other person who has an interest other than an
official interest in the prosecution of the accused [“type
three” accuser].” See United States v. Jeter, 35 M.J. 442, 445
(C.M.A. 1992). The question of whether a CA is an “accuser”
under Article 1(9), UCMJ, is a question of law that we review de
novo. United States v. Conn, 6 M.J. 351, 354 (C.M.A. 1979).
The test for determining whether a CA is a “type three”
accuser is whether he is “so closely connected to the offense
that a reasonable person would conclude that he has a personal
interest in the matter.” United States v. Dinges, 55 M.J. 308,
312 (C.A.A.F. 2001) (Baker, J., concurring) (quoting Allen, 31
M.J. at 585); United States v. Voorhees, 50 M.J. 494, 499
(C.A.A.F. 1999); Nix, 40 M.J. at 7-8; see R.C.M. 601.
Disqualifying personal interests include those matters that
would directly affect the CA’s ego, family, property, and
similar personal interests. Voorhees, 50 M.J. at 499.
Prior to analyzing the appellant’s “type three” accuser
claim, we first consider whether the appellant waived the issue
by his failure to raise the matter at trial. See United States
v. Tittel, 53 M.J. 313, 314-15 (C.A.A.F 2000) (holding that the
15
appellant waived his accuser claim by his failure to raise it at
trial). Under the circumstances of this case, we hold that the
appellant waived his nonjurisdictional “type three” accuser
claim.
Even if the appellant did not waive this nonjurisdictional
“type three accuser” claim, we find no plain error under these
circumstances. See United States v. Harcrow, 66 M.J. 154, 156
n.1 (C.A.A.F. 2008) (defining difference between waiver and
forfeiture and acknowledging that the CAAF has frequently used
the term “waiver” within the context of plain error review).
The appellant’s factual predicate provides no evidence other
than speculation that the CA had an other than official interest
in his case. CAs are presumed to act without bias. United
States v. Brown, 40 M.J. 625, 629 (N.M.C.M.R. 1994. The
appellant has the burden of rebutting this presumption. United
States v. Argo, 46 M.J. 454, 463 (C.A.A.F. 1997) (citing Hagen,
25 M.J. at 84). The appellant asserts nothing in his post-trial
submission directly attributable to the CA, other than the CA’s
interest in the tracking and processing of his court-martial.
Additionally, the appellant does not allege any prejudice and we
find none.
We have carefully examined each of the appellant’s
allegations and evaluated the record of trial. We conclude that
the actions of Commander, U.S. Marine Corps Forces Command
were completely consistent with those of any military commander
and CA who might be called upon to handle an officer misconduct
case. The appellant’s argument appears to conflate command
attention with an “other than official interest.” Within the
Marine Corps, all general court-martial CAs are required to
track and “personally review,” at least monthly, all officer
misconduct cases under his or her command. See MCO P5800.16A
(Change 6), Chapter 4 at 4-2 (stating that all officers
exercising GCMCA are required to “generate an internal sense of
urgency in [processing] officer misconduct . . . cases. . . .
[as] [t]here is no substitute for command attention in officer
cases”).14 A CA is not an accuser when he performs command
functions that are reasonably linked to his UCMJ functions.
Conn, 6 M.J. at 354. Because a CA is required to make
disposition and referral decisions, absolute neutrality on the
part of the CA is not required or even realistic. R.C.M. 306
and 601(d); Allen, 31 M.J. at 584-85.
II. Ineffective Assistance of Counsel
14
Change 7 to MCO P5800.14A was promulgated 10 February 2014.
16
In his second AOE, the appellant argues that he received
constitutionally ineffective assistance of counsel (IAC).
First, the appellant argues that his defense team failed to
explore, during voir dire, the command relationship between the
selected members and the CA. Second, the appellant argues that
his defense team was ineffective by not exploring during voir
dire whether any of the members were aware of various e-mails
and “water cooler” talk, some of which allegedly suggested a
predetermined measure of guilt on the part of the appellant.
Third, the appellant argues that his defense team was
ineffective by not investigating the presence and substance of
these e-mails in an effort to pursue a UCI claim, a “type three
accuser” claim, or to expose the bias of the members. Finally,
the appellant argues that his defense team was ineffective in
not pursuing a “Full-Scope Lifestyle Polygraph Examination” that
the appellant had taken when he became a contracted consultant
with the Central Intelligence Agency (CIA). Appellant’s
Affidavit at 2-3. As part of the background investigation, the
appellant also avers that he underwent a psychological
evaluation that focused on areas of “sexual misconduct” and
“sexual deviance.” Id. The appellant avers that following his
polygraph and psychological profile test, the CIA granted him
full clearance in 2009. The appellant argues that his defense
team should have pursued this information as exculpatory
evidence at his court-martial.
The Government did not submit an opposing affidavit to
counter the appellant’s post-trial declaration, contending
instead that the appellant’s declaration and the record do not
contain sufficient evidence to overcome the presumption of
competence. Appellee’s Brief at 34. We agree.
All service members are guaranteed the right to effective
assistance of counsel at their court-martial. United States v.
Davis, 60 M.J. 469, 473 (C.A.A.F. 2005). We presume that trial
defense counsel provided effective assistance throughout the
trial. Strickland v. Washington, 466 U.S. 668, 687 (1984);
United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004). This
presumption is rebutted only by “a showing of specific errors
made by defense counsel that were unreasonable under prevailing
professional norms.” Davis, 60 M.J. at 473 (citing United
States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001)).
“[S]econd-guessing, sweeping generalizations, and hindsight will
not suffice.” Id. The evidence of record must establish that
counsel “made errors so serious that [they were] not functioning
17
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687.
Even if a defense counsel commits error, it must be so
prejudicial “as to indicate a denial of a fair trial or a trial
whose result is unreliable.” Davis, 60 M.J. at 473 (citing
United States v. Dewrell, 55 M.J. 131, 133 (C.A.A.F. 2001)).
Thus, an appellant alleging ineffective assistance of counsel
“‘must surmount a very high hurdle.’” United States v.
Saintaude, 61 M.J. 175, 179 (C.A.A.F. 2005) (quoting United
States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997)). To
surmount this high prejudice hurdle, an appellant must
demonstrate that “[t]he likelihood of a different result [is]
substantial, not just conceivable.” Harrington v. Richter, 131
S.Ct. 770, 792 (2011) (citing Strickland, 466 U.S. at 693).
We will not judge attorney performance by a more exacting
standard under the often distorting view provided by hindsight.
Strickland, 466 U.S. at 687. Additionally, we recognize that
the tactical and strategic choices made by defense counsel
during trial need not be perfect; instead, they must be judged
by a standard ordinarily expected of fallible lawyers. Gooch,
69 M.J. at 362.
Ineffective assistance of counsel involves a mixed question
of law and fact. Davis, 60 M.J. at 473 (citing Anderson, 55
M.J. at 201). Whether an appellant received ineffective
assistance of counsel and whether the error was prejudicial are
determined by a de novo review. Id. (citations omitted).
Failure to Conduct Sufficient Voir Dire
The appellant’s claim of deficient conduct rests on the
improper premise that it is a per se UCI violation when a CA
selects members from his personal staff to sit as court-martial
members. See Discussion of AOE I, supra. Even assuming
arguendo that the CA was in the fitness reporting chain of all
the selected members, this is not a per se basis to exclude
them. R.C.M. 912; see United States v. Wiesen, 56 M.J. 172, 174
(C.A.A.F. 2001) (stating “impartial court-members are a sine qua
non for a fair court-martial” and an accused does not have a
right to a panel of his choice, only a fair one) (quoting United
States v. Modesto, 43 M.J. 315, 318 (C.A.A.F. 1995)). Voir dire
is the principal instrument to ensure that members are “free
from conflict and bias.” Gooch, 69 M.J. at 357.
18
Under the circumstances in this case, we find that the voir
dire process accomplished the goal of empaneling fair and
impartial members. First, the military judge granted the
defense team’s two challenges for cause. Record at 269-72.
Second, all the selected members testified in response to the
military judge’s question that they did not feel the CA expected
or desired a certain result from the appellant’s case. Id. at
219. Failure to explore fitness reporting relationships during
voir dire vis-à-vis the CA was not constitutionally deficient
conduct because the mere fact that there may have been a fitness
report relationship with the CA is not a basis for
disqualification for actual or implied bias and the appellant
asserts no legal authority for this position. Additionally,
assuming arguendo that the CA was either the reporting senior,
or reviewing officer of all empaneled members save one,15 we find
no prejudice in the record and the appellant asserts none.
Additionally, we disagree with the appellant’s suggestion
that his defense team conducted no voir dire to explore what
information the members had been exposed to regarding the
appellant. Only three of the members that the CA selected had
heard of the appellant or his case, Col GD,16 Col AF, and LtCol
TC. Record at 204-05. The appellant’s civilian defense counsel
conducted individual voir dire of all three and specifically
probed the basis and extent of their knowledge of the
appellant’s case. The Government successfully challenged Col GD
and the appellant successfully challenged LtCol TC.
The appellant’s civilian defense counsel asked Col AF the
following:
CDC: And just to make sure, I think you’ve hit on it,
but I just want to make it clear, is the only
knowledge you have about this case, other than the –-
other than what you’ve read here or heard here today,
your only knowledge is that one SIR or that one
report?
Col AF: Yes.
15
Appellant’s Brief at 24.
16
Col GD was the Reporting Senior to LtCol SY. Record at 218. Both Col GD
and LtCol SY were challenged for cause by the Government and the military
judge granted both challenges. Id. at 269.
19
CDC: Did you happen to – since has anybody talked to
you about it or – and I’m not saying specifically
“This is our conversation about Captain Loiacono,” did
you hear it in passing, or was there a follow-up to
that SIR or anything like that?
Col AF: No, it was so far removed, you know, and –
and we’re in Norfolk, Headquarters Service Battalion,
and it was just one of those of interest. We get all
of them to -- you know, as a mentioned, to include
Afghanistan, just -- we were getting copies of all.
They come into the Norfolk COM Headquarters, and I was
on – at that time I was on the distribution list for
all of those things, that’s it.
Id. at 243-44.
Contrary to the appellant’s suggestion, we find that his
civilian defense counsel asked questions of Col AF and LtCol TC
in an attempt to expose how widespread the “staff talk” was
surrounding the appellant and his case. Based on our review of
the record, we conclude that the appellant’s defense team was
not deficient in conducting its voir dire with the goal of
empaneling fair and impartial members to sit in judgment of the
appellant’s case. Additionally, we find no evidence in the
record that the appellant’s post-trial allegation of lack of
voir dire in these areas of inquiry was in any way prejudicial
to the appellant’s case.17 Indeed, based on our review of the
record, the military judge’s questions, in combination with the
questions from the appellant’s civilian defense counsel, we find
no evidence that would call into question the fairness or
impartiality of the empaneled members.
Failure to Conduct Additional Investigation
Next, the appellant argues that his trial defense counsel
team was constitutionally deficient in not investigating and
presumably securing certain “hostile command e-mails” that
allegedly suggested the appellant’s guilt. Assuming, without
deciding, that such e-mails existed, the appellant does not
allege how these e-mails would have made a difference in his
17
We have also considered and reject the appellant’s IAC claim that his
defense team should have explored in voir dire whether the CA should have
been disqualified as a “type three” accuser. The members had already
testified that they did not feel that the CA expected a certain result in
this case or that they had any idea what the CA was thinking with regard to a
particular result. Record at 219.
20
case. With the exception of Col AF, no member who sat on his
panel testified that they knew anything about the appellant or
his case, let alone any “hostile e-mails” regarding the
appellant. In fact, the only member who sat, Col AF, testified
that he had only seen a relatively generic SIR regarding the
appellant’s case.
Finally, the appellant argues that his trial defense team
was deficient in not pursuing the appellant’s polygraph
examination and psychological profile he underwent prior to
becoming a consultant for the CIA. This claim fails for at
least three reasons. First, assuming that the CIA would have
provided a copy of its polygraph examination questions and
psychological profile questions, the opinion of the polygraph
examiner would not have been admissible under MILITARY RULE OF
EVIDENCE 707, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
Second, even assuming arguendo that the polygraph examiner who
conducted the examination would have been competent to testify,
his testimony would be improper character evidence under MIL. R.
EVID. 405. Third, assuming arguendo that lack of “sexual
deviance” was a pertinent character trait and admissible, MIL. R.
EVID. 404(a)(1), the polygraph examiner would not have been
competent to offer this type of evidence since MIL. R. EVID.
405(a) limits such character evidence to proof by opinion or
reputation. See United States v. Schelkle, 47 M.J. 110, 112
(C.A.A.F. 1997) (holding that good military character is not an
essential element of a defense and good military character or
other character evidence is limited to reputation and opinion
testimony). If the evidence in question would not have been
admissible, it is not deficient conduct in failing to pursue the
evidence. See Richter, 131 S.Ct. at 789 (stating that there is
no obligation for an attorney to “pursue an investigation that
would be fruitless . . . . ”).
Based on the appellant’s post-trial submission and our
careful analysis of the record, we find that the appellant, even
assuming arguendo his allegations are true, has failed to meet
his burden of establishing a “factual foundation for [his] claim
of ineffective representation.” United States v. Grigoruk, 52
M.J. 312, 315 (C.A.A.F. 2000). Because the appellant’s post-
trial submission alleges facts that would not result in relief,
we reject his claim on that basis and deny the appellant’s
request for a post-trial evidentiary hearing. United States v.
Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).
III. Denial of Discovery of TW’s Facebook Records
21
In his third AOE, the appellant argues that the military
judge abused his discretion in denying the defense request for
discovery of TW’s Facebook records. We disagree.
Article 46, UCMJ, provides that each party to a court-
martial shall have “equal opportunity to obtain witnesses and
other evidence.” Each party is entitled to evidence that is
relevant and necessary; however, a party is not entitled to
production of evidence that is “destroyed [or] lost.” R.C.M.
703(f)(1) and (f)(2). If requested evidence does not exist,
relief is warranted only if it is of “such central importance to
an issue that it is essential to a fair trial.” R.C.M.
703(f)(2).
We review a military judge’s denial of a discovery request
for evidence under an abuse of discretion standard. United
States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004). “We will
uphold the findings of fact of a military judge unless they are
clearly erroneous or unsupported by the record.” United States
v. Rodriquez, 57 M.J. 765, 770 (N.M.Ct.Crim.App. 2002) (citation
omitted), aff’d, 60 M.J. 239 (C.A.A.F. 2004).
In this case, the defense submitted a discovery request for
TW’s Facebook records based on his testimony at the Article 32
investigation that he was talking with friends on Facebook when
the appellant entered the PCS lounge. Without conceding that
the Facebook records were relevant or necessary, the Government
sent a subpoena to Facebook; however, the Facebook Corporation
refused to comply with the subpoena. The Government requested
that the military judge issue a Warrant of Attachment, which he
executed on 3 April 2012. AE XV. Facebook did not comply with
the Warrant of Attachment. At no time did the appellant file a
motion to compel the discovery of these alleged Facebook
records. Record at 148.
We conclude that the military judge did not abuse his
discretion because the appellant failed to meet his burden to
show that the evidence in question existed. See Rodriguez, 60
M.J. at 246 (holding that Yeoman Third Class Rodriguez failed to
meet his threshold burden of demonstrating that the requested
evidence existed). Additionally, the appellant failed in his
burden to demonstrate either the relevance or necessity of the
requested evidence. The appellant’s argument for relevance and
necessity was premised on the possibility that the evidence in
question went to alibi. Record at 137. The appellant, however,
did not demonstrate how the evidence in question went to alibi.
Indeed, when asked by the military judge, the appellant’s
22
civilian defense counsel conceded that no evidence of alibi had
been raised with regard to the offenses involving TW. Id. at
533. The mere fact that TW may have been accessing Facebook at
the time the appellant entered the PCS lounge is insufficient to
establish alibi. Accordingly, even assuming arguendo that the
military judge erred, we find no prejudice.18
IV. Severance
In his fourth AOE, the appellant argues that the military
judge abused his discretion in denying the appellant’s motion to
sever the charge of communicating indecent language to AN from
the charge of indecent liberty with a child. AE V. We
disagree.
“[M]ilitary practice favors the joinder of all known
charges, save in a case where such joinder threatens manifest
injustice.” United States v. Silvis, 31 M.J. 707, 709
(N.M.C.M.R. 1990) (citations omitted), aff'd, 33 M.J. 135(C.M.A. 1991); see R.C.M. 601(e)(2) and 906(b)(10). On appeal,
an appellant has the burden to show that the military judge’s
denial caused actual prejudice “by preventing the appellant from
receiving a fair trial.” United States v. Giles, 59 M.J. 374,
378 (C.A.A.F. 2004) (citation omitted).
We review the military judge's decision whether to grant a
motion to sever for an abuse of discretion. United States v.
Southworth, 50 M.J. 74, 76 (C.A.A.F. 1999) (citing United States
v. Foster, 40 M.J. 140, 148 (C.M.A. 1994)). In doing so, we
analyze three factors: (1) whether the evidence of one offense
would be admissible proof of the other; (2) whether the military
judge has provided a proper limiting instruction; and, (3)
whether the findings reflect an impermissible crossover.
Southworth, 50 M.J. at 76.
In this case, we find that although the indecent language
offense involving AN could not be used to prove the indecent
liberty with a child involving TW, there was an important
connection between the two: proof of identity of the appellant.
18
We find the appellant’s argument of prejudice unpersuasive. The appellant
speculates that the Facebook evidence “prevented the establishment of an
accurate timeline of events.” Appellant’s Brief at 38. Without more, this
evidence would not be probative as to alibi, unless the appellant had
independent evidence he was somewhere else. The appellant’s argument that
the Facebook evidence may have made a difference if the message itself did
not contain a contemporaneous comment that some “weird guy [is] in the [PCS]
lounge” or words to that effect, id. at 39, is pure speculation and
insufficient to raise alibi.
23
During trial the appellant’s theory centered largely on the
defense of alibi.19 TW testified that when the man whom he later
identified as the appellant entered the PCS lounge, he was
speaking loudly on his cell phone about having been awakened by
a man standing in his room. Record at 296. Other than this
overlap of proof, we find no other instance in which evidence of
the indecent language overlapped with proof of the indecent
liberty charge. Because the identity of the appellant was a
central issue in this case, we find that as to identity, proof
of one charge was admissible to prove the other charge.
With regard to the second Southworth factor, the military
judge gave an appropriate spillover instruction that clearly
instructed the members to keep evidence of each offense
separate. Record at 576-77. Prior to giving instructions on
findings, the military judge invited appellant to object to any
of the instructions. Id. at 540. The appellant had no
objection. His failure to object weighs in favor of the fact
that the instruction eliminated any lingering spillover concern.
R.C.M. 920(f).
With regard to the third Southworth factor, we find no
impermissible cross-over. First, the evidence on the indecent
liberty charge was strong. Second, the trial counsel in his
argument compartmentalized the two charges by sign-posting that
he would first discuss the “offenses from the phone call [the
appellant] placed to [AN]” and then later discuss the “offenses
stemming from [the appellant’s] interaction with [TW] in the PCS
lounge.” Record at 541. Third, the members acquitted the
appellant of the indecent language offense involving AN. See
United States v. Kerr, 51 M.J. 401, 406-07 (C.A.A.F. 1999)
(stating that an appellate court reviews the entire record in
evaluating a military judge’s ruling on spillover).
V. Admission of PE 5 and PE 6
In his fifth AOE, the appellant asserts that the military
judge abused his discretion when he admitted, over defense
19
While discussing instructions of findings, the appellant’s civilian defense
counsel conceded that no evidence had been raised as to alibi with regard to
the offenses involving TW. Record at 532-33.
24
objection, computerized printouts of key-card usage for various
hotel rooms (PE 5) and room-to-room telephone logs (PE 6) for
the relevant dates. Specifically, the appellant argues that PE
5 and PE 6 were not properly authenticated under MIL. R. EVID.
901. He also argues that the military judge admitted PE 5 and
PE 6 without a valid exception to the hearsay rule.20 We
disagree.
We review the military judge’s ruling on these two
evidentiary matters for an abuse of discretion. United States
v. Foerster, 65 M.J. 120, 125 (C.A.A.F. 2007) (citing United
States v. Datz, 61 M.J. 37, 42 (C.A.A.F. 2005)).
Computer generated records are admissible if the record
satisfies the “business-record exception to the hearsay rule”
under MIL. R. EVID. 803(6). United States v. Casey, 45 M.J. 623,
626 (N.M.Ct.Crim.App. 1996). An authenticating witness need
only be generally familiar with the process that generated the
record to qualify as an appropriate sponsor for evidence offered
under MIL. R. EVID. 803(6). United States v. Garces, 32 M.J. 345,
347 (C.M.A. 1991); see United States v. Harris, 55 M.J. 433, 437
(C.A.A.F. 2001) (holding that bank teller generally familiar
with logbook entry process met requirements of MIL. R. EVID.
803(6) even though she did not make the logbook entries on the
date in question). Additionally, our superior court has
endorsed the view of federal courts in analyzing the analogous
federal rule that “the business records exception should be
‘construed generously in favor of admissibility.’” Foerster, 65
M.J. at 125 (quoting Conoco Inc. v. Dep’t of Energy, 99 F.3d
387, 391 (Fed. Cir. 1996)).
PE 5: Computer Printout of Key-Entry Log
The Government called the lead technician for the hotel,
who had worked there for 14 months, to sponsor the admission of
PE 5, a key-entry log for various rooms in the hotel. Record at
414-15; PE 5. He testified that access to the hotel’s computer
room was tightly controlled and that he used a hand-held device
to download key-entry data from the locks of the three rooms in
question. Id. at 415-16. He testified that the hand-held
20
The appellant appears to argue that the Government when offering PE 5 and
PE 6 had an obligation to articulate an exception to the hearsay rule.
Appellant’s Brief at 51 n.13 & 52 n.14. We disagree. See MIL. R. EVID.
103(a)(1). Unless the military judge required a theory of admissibility, the
Government did not have an independent requirement to articulate an exception
to the hearsay rule.
25
terminal was in working order and he generated a print-out of
the key-entry logs. Id. at 416. Additionally, he testified
that PE 5 was a fair and accurate copy of the data printout that
he personally printed. Id. at 417. The trial counsel offered
PE 5 and the trial defense counsel objected citing hearsay.
On appeal, the appellant has recast his argument to make an
authenticity challenge to the admission of this evidence citing
MIL. R. EVID. 901. Appellant’s Brief at 51-52.21 By failing to
raise it at trial, the appellant forfeited any lack of
authentication objection in the absence of plain error. MIL. R.
EVID. 103(a)(1). See United States v. Reynoso, 66 M.J. 208, 210
(C.A.A.F. 2008) (emphasizing the specificity requirement of MIL.
R. EVID 103(a)(1)). Based on our review of the record, the
objection to hearsay was preserved, but the objection as to
authenticity was not. United States v. Lubich, 72 M.J. 170, 173
n.6 (C.A.A.F. 2013) (explaining that authenticity and hearsay
are distinct evidentiary issues).
Testing for plain error, we find none. An objection based
on authenticity under MIL. R. EVID. 901 requires “only a prima
facie showing that is ‘sufficient to support a finding that the
matter in question is what its proponent claims’” it to be.
Id. (quoting MIL. R. EVID. 901(a)). Clearly, the witness’
testimony qualified as sufficient to authenticate PE 5. We also
find no prejudice to the appellant’s substantial rights and he
asserts none.
With regard to the appellant’s preserved hearsay objection,
we find that the military judge did not abuse his discretion.
The testimony of the lead technician for the hotel, his
familiarity with downloading key-entry logs from various hotel
rooms by use of a hand-held device, and his specific
recollection that PE 5 was generated near the time of the events
in question, met the requirements of the “business records
exception” to the hearsay rule. MIL. R. EVID. 803(6).
PE 6: Redacted Computer Printout of Room-to-Room Call Log
Prior to discussing the ruling of the military judge, some
background information is appropriate to explain the reason PE 6
21
The appellant also argues that the military judge erred in admitting PE 5
because it was a copy and not the original. This argument is without merit
because with regard to data stored on a computer, “any print-out or other
output readable by sight, shown to reflect the data accurately, is an
‘original.’” Mil. R. Evid. 1001(3); see Mil. R. Evid. 1003 (stating that a
duplicate copy is admissible to the same extent as an original).
26
was heavily redacted when offered into evidence by the
Government. When AN first complained to hotel management about
receiving anonymous and indecent phone calls, he was not the
only one who had complained. AE VI. Prior to trial, the
Government provided notice to the defense pursuant to MIL. R. EVID
404(b) that it would seek to admit evidence of other hotel
guests who had received anonymous and indecent phone calls. The
appellant filed a motion to exclude this evidence primarily
citing MIL. R. EVID. 403. AE XI. The military judge granted the
motion and ruled that the room-to-room telephone logs be
redacted to show only telephone logs associated with calls to
specified rooms. AE XIX.
At trial, the Government called the hotel manager, to
sponsor the admission of PE 6. He testified that after having
received the complaint from AN on 18 August 2011, the hotel
implemented a tracking system to keep track of the origin, time,
and duration of room-to-room phone calls. Record at 398. The
tracking system was not operational until 23 August 2011. Id.
at 406. When AN complained again on 24 August 2011, a computer
printout of room-to-room calls was generated. The hotel manager
personally reviewed the printout and testified that PE 6 was a
fair and accurate copy of the computer printout he had
previously reviewed. Id. at 399. The military judge overruled
the appellant’s hearsay objection and admitted PE 6.
Similar to his appellate objection to PE 5, the appellant
has recast his argument to make an authenticity challenge to the
admission of this evidence citing MIL. R. EVID. 901. Appellant’s
Brief at 50-51. By failing to make an authenticity objection at
trial, the appellant forfeited that evidentiary objection in the
absence of plan error. MIL. R. EVID. 103(a)(1); see Reynoso, 66
M.J. at 210 (emphasizing the specificity requirement of MIL. R.
EVID 103(a)(1)). Based on our review of the record, the
objection to hearsay was preserved, the objection as to
authenticity was not. See Lubich, 72 M.J. at 173 n.6.
Testing for plain error, we again find none. In fact, the
appellant concedes that the hotel manager’s testimony “may very
well satisfy the requirements [for] authentication under” MIL. R.
EVID. 901. Appellant’s Brief at 51. Clearly, the testimony of
the hotel manager qualifies as sufficient to authenticate PE 6.
We also find no prejudice to the appellant’s substantial rights
and he asserts none.
With regard to the appellant’s hearsay objection, we find
that the military judge did not abuse his discretion,
27
particularly given the general preference for construing the
“business records exception” in favor of admissibility.
Foerster, 65 M.J. at 125. The hotel manager’s general
familiarity with the telephone tracking system, in combination
with his testimony that PE 6 was accessed and printed at or near
the time of the events in question, met the minimal requirements
of the “business records exception” to the hearsay rule. MIL. R.
EVID. 803(6).
Assuming arguendo that the military judge erred, we
note that the members acquitted the appellant of the sole
offense directly related to PE 6. Accordingly, we find no
prejudice and the appellant asserts none.22
VI. Sufficiency of the Evidence
The appellant’s sixth AOE alleges that the evidence was
legally and factually insufficient to sustain his conviction for
engaging in indecent liberty with a child. We disagree.
We review questions of legal sufficiency de novo. United
States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F. 2011). We
review the legal sufficiency of the evidence by determining
“whether, considering the evidence in the light most favorable
to the prosecution, any reasonable fact-finder could have found
all the essential elements beyond a reasonable doubt.” United
States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citation
omitted). We also review the factual sufficiency of the
members’ findings. The test for factual sufficiency is whether
“after weighing all the evidence in the record of trial and
recognizing that we did not see or hear the witnesses as did the
trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J.
552, 557 (N.M.Ct.Crim.App. 2006) (citations omitted), aff’d, 64
M.J. 348 (C.A.A.F. 2007). The term “reasonable doubt” does not
mean that the evidence must be free of any conflict. Id.(citation omitted). The members may “believe one part of a
witness’s testimony and disbelieve another.” United States v.
Harris, 8 M.J. 52, 59 (C.M.A. 1979).
In this AOE, the appellant does not identify any deficiency
of proof as to a specific element of the offense. Instead, he
22
Additionally, we also note that the appellant conceded in his opening
statement the evidence contained in PE 6: “You’re basically looking at two
phone calls, two phone calls over a 10-minute period. The first call was 8
seconds; the second call was 7 minutes.” Record at 286.
28
mounts a broad-based attack on the credibility of TW by arguing
evidence that was offered at trial and argued by trial defense
counsel to impeach the credibility of TW. Conducting our own
factual sufficiency analysis we disagree with the appellant’s
argument and find that this evidence, considered and rejected by
the members, are insufficient to call into question the factual
or legal sufficiency of the evidence. Conducting our analysis,
we find TW’s testimony to be credible. Accordingly, we find the
evidence legally and factually sufficient to prove indecent
liberty with a child.23
VII. Impartiality of the Military Judge
In his seventh AOE, the appellant argues that the military
judge abandoned his impartial role when he asked AN a question
and AN’s response touched on an evidentiary matter that the
military judge had previously ruled inadmissible. Appellant’s
Brief at 61. We disagree.
All military judges are presumed to be impartial in their
conduct of court-martial proceedings. United States v. Foster,
64 M.J. 331, 333 (C.A.A.F. 2007). “‘[W]hen a military judge’s
impartiality is challenged on appeal, the test is whether, taken
as a whole in the context of this trial, a court-martial’s
legality, fairness, and impartiality were put into doubt’ by the
military judge actions.” United States v. Martinez, 70 M.J.
154, 157-58 (C.A.A.F. 2011) (quoting United States v. Burton, 52
M.J. 223, 226 (C.A.A.F. 2000)). Failure to object at trial to
the military judge’s alleged partiality may support an inference
that the military judge remained impartial. Foster, 64 M.J. at
333 (citations omitted).
In this case, we conclude that the military judge’s
question did not reasonably raise the issue of partiality and we
hold that, based on the entire record, there is no reasonable
risk that the military judge’s conduct could be perceived as
undermining the “public’s confidence in the military justice
system.” Martinez, 70 M.J. at 159.
23
The appellant also argues that the evidence is insufficient based on the
testimony of Ms. MC, who the appellant argues established an alibi for him.
Appellant’s Brief at 55-56. We disagree. Ms. MC’s testimony was only
offered to establish the appellant’s alibi defense as to the charges
involving AN. The appellant’s civilian defense counsel conceded that no
evidence of alibi was raised with regard to the offense of indecent liberty
with a child. Record at 533. Accordingly, the military judge only
instructed on alibi as to the offenses involving AN. Id. at 573-74.
29
Having previously granted the defense’s motion to exclude
evidence of the appellant’s multiple phone calls to other hotel
guests, the military judge ruled that only evidence of phone
calls between the appellant and AN was admissible.24 It is
within this context, subsequent to the direct examination,
cross-examination, and re-direct, that the military judge asked
AN a series of questions. First, he asked AN to describe the
appellant’s uniform based on AN’s earlier testimony that he had
seen the appellant the following morning eating breakfast.
Record at 435. With regard to the military judge’s exchange
with AN that is the basis for this AOE:
MJ: You said that you and [AS] had talked about the
possibility of this person calling you again before
you went back to the Marriott, is that correct?
AN: No, sir, we – I arrived at the 27th [sic].
MJ: Okay.
AN: And there I met [AS], and he was the co-pilot of
the next day. And we talked about the phone calls and
– C
CDC: Your Honor, I’m just going to object for hearsay
purposes. I know, Your Honor is asking the questions,
so, respectfully I objected under hearsay.
MJ: Okay. I’ll actually sustain your objection
against me.
MJ: What made you think you needed a plan, in case
you got more phone calls? Why did you think you would
get more phone calls of a harassing nature?
AN: Because I haven’t been the only one.
CDC: Your Honor, I’m going to ask for a 39(a)
[session], Your Honor.
24
Prior to trial, the Government filed a motion pursuant to MIL. R. EVID
404(b) seeking to admit evidence of other hotel guests who had received
anonymous and indecent phone calls. The appellant moved the court to exclude
any evidence of harassing phone calls from the appellant’s hotel room, room
533, to other hotel guests based primarily on MIL. R. EVID. 403. AE XI. The
military judge granted the motion and ruled that the room-to-room telephone
logs be redacted to show only telephone logs associated with specified rooms.
AE XIX; PE 6.
30
MJ: Okay. Gentlemen, I’m going to ask you to step
into the deliberation room.
Id. at 441-42.
Based on our analysis of the colloquy between the
military judge and AN, we discern no partiality with regard
to that specific question. It was an open-ended question,
which, contrary to the appellant’s argument, did not
violate the military judge’s earlier evidentiary ruling.
The substance of the question itself does not suggest an
answer that would embrace inadmissible evidence. Once AN’s
answer did touch on evidence previously ruled inadmissible,
the military judge directed an immediate Article 39(a)
session, excused the members, and took argument from both
parties. When he brought the members back into court, the
military judge provided a strong curative instruction. Id.
at 444-45. The trial defense counsel took no issue with
the curative instruction. All members indicated that they
could follow the instruction. Id. at 445. The members are
presumed to have followed the military judge’s instruction.
United States v. Reyes, 63 M.J. 265, 267 (C.A.A.F. 2006)
(citations omitted).
We also find that no prejudice flowed from AN’s answer
because the members acquitted the appellant of the indecent
language offense related to AN.
VIII. Sentence Appropriateness
In his eighth AOE, the appellant argues that his sentence
to a dismissal for engaging in indecent liberty with a child and
false official statement is inappropriately severe. We
disagree.
In accordance with Article 66(c), UCMJ, a military
appellate court “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence as it finds
correct in law and fact and determines, on the basis of the
entire record, should be approved.” This court reviews the
appropriateness of the sentence de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). “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 the
31
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 review of the entire record, 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. In addition
to considering the nature and the seriousness of the specific
offenses committed by the appellant, we have carefully
considered the individual characteristics of the appellant,
which includes his performance during the course of career as
well as a significant number of individuals (military and
civilian) who provided evidence as to the good character of the
appellant. Considering the entire record, we conclude that
justice is done and that the appellant receives the punishment
he deserves by affirming the sentence as approved by the CA.
Granting sentence relief at this point would be to engage in
dispensing clemency -- a prerogative uniquely reserved for the
CA -- and we decline to do so. Healy, 26 M.J. at 395-96.
IX. Cumulative Error
In his final AOE, the appellant argues the applicability of
the “cumulative-error” doctrine and that we should set aside the
findings and sentence. Appellant’s Brief at 66. We disagree.
The “cumulative error” doctrine carries with it the implication
that there were errors in sufficient number and magnitude that
when combined would necessitate the setting aside of the
findings or sentence. United States v. Gray, 51 M.J. 1, 61
(C.A.A.F. 1999). Under the circumstances in this case, we have
either rejected the appellant’s AOEs or found them to be non-
prejudicial. The accumulation of AOEs found not to be error or
found to be independently non-prejudicial, is insufficient to
invoke the “cumulative error” doctrine and we decline to do so.
Id. This AOE is without merit.
Conclusion
The findings and the sentence as approved by the CA are
affirmed.
Senior Judge MITCHELL and Judge FISCHER concur.
For the Court
32
R.H. TROIDL
Clerk of Court
33