United States v. Easterly ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
M.D. MODZELEWSKI, F.D. MITCHELL, J.A. FISCHER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ROGER E. EASTERLY, JR.
SERGEANT (E-5), U.S. MARINE CORPS
NMCCA 201300067
GENERAL COURT-MARTIAL
Sentence Adjudged: 2 October 2012.
Military Judge: LtCol Charles Miracle, USMC.
Convening Authority: Commanding General, 2d Marine Aircraft
Wing, Beaufort, SC.
Staff Judge Advocate's Recommendation: LtCol J.J. Murphy,
USMC.
For Appellant: Capt David Peters, USMC.
For Appellee: LCDR Brian C. Burgtorf, JAGC, USN.
31 January 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
MITCHELL, Senior Judge:
A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of adultery in violation of Article 134, Uniform
Code of Military Justice, 10 U.S.C. § 934. Contrary to his
pleas, a general court-martial panel of members with enlisted
representation convicted the appellant of one specification of
making a false official statement, one specification of assault
consummated by a battery, and one additional specification of
adultery in violation of Articles 107, 128, and 134, UCMJ, 10
U.S.C. §§ 907, 928, and 934. The appellant was sentenced to be
reduced to pay grade E-1, to forfeit all pay and allowances, to
be confined for a period of two years, and to be discharged with
a bad-conduct discharge. The convening authority approved the
adjudged sentence and, except for the bad-conduct discharge,
ordered it executed.
In his sole assignment of error, the appellant contends
that the military judge erred by not granting his motion for
appropriate relief due to unlawful command influence. 1 The
appellant specifically avers that the Heritage Brief given at
Marine Corps Air Station (MCAS), Beaufort, by the Commandant of
the Marine Corps (hereinafter “CMC”) and subsequent White
Letters, issued by the CMC, tainted the potential members pool
and thereby prevented the appellant from receiving a fair trial. 2
Having considered the parties’ pleadings, the record of
trial, and oral argument, we find that the military judge erred
as a matter of law in denying the defense motion for appropriate
relief. Notwithstanding that determination, we are convinced
beyond a reasonable doubt that any unlawful command influence
did not affect the fairness of the proceedings against the
appellant. Accordingly, 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 occurred. Arts. 59(a) and 66(c), UCMJ.
I. Background
From 1 December 2011 through 14 January 2012, the
appellant, an active duty Marine stationed at MCAS Beaufort, and
Ms. B, the spouse of an active duty enlisted Marine deployed to
Afghanistan, were involved in an ongoing adulterous
relationship. During their adulterous affair, the appellant was
fully aware that Ms. B was married to an enlisted Marine, junior
in rank to himself, and that he was deployed to Afghanistan.
The appellant, although physically separated from his wife, was
also legally married during the time of the affair. His
1
Major E.L. Emerich, USMC, heard the motion and issued the ruling.
2
“Military leaders are prohibited from creating an objective appearance that
a court-martial proceeding is unfair. Here, the CMC of the Marine Corps gave
a ‘Heritage Brief” to many Marines including members of appellant’s later
court-martial. He declared that 80% of cases like appellant’s are
‘legitimate sexual assaults’ and that they should ‘get rid’ of Marines
suspected of misconduct. Did the military judge err in finding no unlawful
command influence and in denying that defense motion?”
2
relationship with Ms. B was the basis for the adultery offense
to which the appellant pled guilty.
The remaining charges stem from the events of 14 January
2012, when Ms. B and her friend, Ms. L, met the appellant out in
Beaufort, South Carolina, for drinks. Prior to this night, Ms.
L had met the appellant twice and had only exchanged
pleasantries during those encounters. Through her friendship
with Ms. B, Ms. L was fully aware that Ms. B and the appellant
were engaged in an adulterous relationship and that they often
engaged in rough sex.
That evening, the appellant met Ms. B and Ms. L at a local
bar; by this time, Ms. L had already consumed approximately five
to six alcoholic drinks and a couple of shots of liquor. After
Ms. B and the appellant had an argument, Ms. B and Ms. L left
and went to a different bar. The two women continued to consume
alcohol before they met up again with the appellant at another
bar. By this time, Ms. B was not feeling well and wanted to go
home.
Ms. L drove Ms. B back to her on-base residence. During
the ride, Ms. B became sick to the point that she vomited out
the passenger window. When they arrived at Ms. B’s house, she
immediately went into the master bathroom and vomited again.
While in the house, Ms. B’s dog jumped up and bit Ms. L on the
chin, breaking the skin, causing her to bleed. The appellant
arrived at Ms. B’s house shortly thereafter and immediately
placed a blanket over Ms. B, who was still sick in the bathroom.
He then asked Ms. L what had happened to her chin and she
explained that the dog had bitten her. The appellant proceeded
to kiss her chin to “make it better.” Record at 479-80.
The appellant and Ms. L left Ms. B in the bathroom and went
into the kitchen where they drank a couple of shots of whiskey.
After Ms. L drank 1½ shots, the appellant kissed her. Ms. L
consented to this kiss, but told the appellant “you belong to
[Ms. B].” Id. at 481. During the kiss, Ms. B walked into the
kitchen and saw the appellant and Ms. L kissing, became upset,
and went to the master bedroom where she went to bed.
Despite having difficulty walking due to the effects of the
alcohol she had consumed, Ms. L managed to find her way to the
guest room, leaving the appellant in the kitchen. According to
Ms. L, the next thing she remembers is being awakened to a male
on top of her, penetrating her vagina. She testified that the
man on top of her then began to bite her and call her by Ms. B’s
name. Id. at 483. Ms. L testified that when fully awake, she
3
realized it was the appellant having sexual intercourse with
her.
Ms. L testified the appellant began to more forcefully bite
her lip, neck, shoulders, down her arms, and her chest. Ms. L
stated she told the appellant multiple times that it hurt and
told him to stop. Ms. L further testified she tried to push the
appellant off of her, but this only made him bite harder and
pump his hips faster. Ms. L stated she repeatedly told the
appellant to get off of her and to stop. Id. According to Ms.
L, the encounter went on for about 45 minutes until the dog
started barking. Ms. L testified she then asked the appellant
to quiet the dog so as to not awaken Ms. B. Ms. L indicated the
appellant stopped having sex with her to tend to the dog and
this gave her time to get dressed and flee the room.
Ms. L then woke up Ms. B, told her what had happened and
that she needed to go to the hospital. Ms. B and Ms. L left the
appellant in the house and went to the local hospital’s
emergency room. At the hospital, a rape kit was done and the
Naval Criminal Investigative Service (NCIS) was notified. The
appellant was questioned by NCIS on 14 January 2012; during his
interrogation and in a subsequent sworn statement, the appellant
denied having any kind of sexual encounter with Ms. L.
II. Procedural Timeline
On 13 February 2012, charges were preferred against the
appellant for making a false official statement, two
specifications of forcible rape, assault consummated by a
battery, and two specifications of adultery. An Article 32,
UCMJ, investigation was conducted on 8 March 2012 and two
additional specifications of rape were preferred on 19 March
2012. Charges were referred for trial by general court-martial,
and the appellant was arraigned on 16 April 2012.
In April 2012, the CMC and Sergeant Major of the Marine
Corps embarked on a series of lectures at Marine Corps
installations known as the “Heritage Brief.” The CMC indicated
that his intent was to speak directly with every officer and
staff noncommissioned officer (SNCO) in the Marine Corps. The
tenor of the brief was that the CMC was disappointed with the
lack of accountability for Marines who commit misconduct. Of
particular relevance to this case, on 19 April 2012, the CMC
presented the brief to officers and SNCOs at Marine Corps
Recruit Depot (MCRD), Parris Island; later that day he addressed
the same target audience at MCAS Beaufort, South Carolina.
4
In May 2012, the CMC disseminated White Letter 2-12,
requesting support from Marine Leadership in combating, inter
alia, sexual assaults in the United States Marine Corps. In
July 2012, the CMC issued White Letter 3-12 explaining that the
Heritage Brief and White Letter 2-12 were not designed to
influence any Marine’s decision at courts-martial or boards of
inquiry.
On 13 August 2012 the appellant, through his trial defense
counsel, filed a motion for appropriate relief due to unlawful
command influence. 3 Appellate Exhibit V. The Government filed
its response on 27 August 2012 (AE VI), and the motion was
litigated on 11 September 2012. The presiding military judge
denied the defense’s motion for appropriate relief, stating that
there was no actual or apparent unlawful command influence
resulting from the CMC’s Heritage Brief. Record at 69-71. The
appellant’s general court-marital was assembled, and his trial
began on 25 September 2012.
III. The Heritage Brief and White Letters
We now turn to the contents of the Heritage Brief and White
Letters. The Heritage Brief given at MCRD Parris Island was
recorded, transcribed, and offered by the defense on the
unlawful command influence motion at trial. 4 The MCAS Beaufort
Heritage Brief, given the same day, was not recorded; however,
two Marine first lieutenants (1stLt) who attended the MCAS
Heritage Brief drafted affidavits detailing, to the best of
their recollections, the content of the brief. Much, if not
all, of what they remembered the CMC saying was also contained
in the MCRD Parris Island transcript, which suggests that the
briefs were, in all likelihood, the same or very similar. 5
Excerpts from the transcript from the MCRD brief included the
following:
3
The relief requested was a dismissal with prejudice of all referred charges
and specifications. In the alternative, the trial defense counsel requested
the following potential curative measures from the military judge: an
increase in peremptory challenges for a total of four; that the Government
receive no peremptory challenges; that no officers or SNCOs sit on the
appellant’s court-martial panel; and, sentencing limitations in which a
punitive discharge or confinement could not be considered by the members.
4
The military judge refused to consider the verbatim transcript of the
Heritage Brief offered at MCRD Parris Island even though it was given on the
same day as the brief to officers and SNCOs assigned to MCAS Beaufort. The
military judge indicated that the briefs given to the other bases were “too
remote and tenuous to be relevant in this case.” Record at 51.
5
The affidavits of 1stLt B and 1stLt C are contained in AE V, pages 38-41.
5
And I will tell you what, this past year, we had 348
sexual assaults in 2011 and you go - - males in here,
I know exactly what you are thinking: well it’s - -
it’s not true; it’s buyer’s remorse; they got a little
bit liquored up and ended up in the rack with
corporal, woke up the next morning, pants were down,
what the hell happened? Buyer’s remorse. Bullshit.
I know fact. I know fact from fiction. The fact of
the matter is: 80 percent of those are legitimate
sexual assaults. Not all of them are rape, not all of
them - - by the way, none of them are sneaking behind
a bush with a ski mask on and grabbing somebody,
snatching them into the bush. That’s not it. We have
got Marines that are predators. . . .”
AE V at 50-51.
Accountability; here is my sense. . . . But we have
got a problem with accountability. I see it across
the Marine Corps. I see it in the Boards of Inquiry,
they come in, their results and we have got an officer
that has done something absolutely disgraceful and
heinous and the board - - he goes to - - he goes to a
court-martial and he goes before a board of colonels
and we elect to retain him. Why? Do I need this
captain? Do I need this major? I don’t. Why would I
want to retain someone like that?”
I see the same thing with staff NCOs. You go
before a board and the board sits around, “milk of
human kindness” and misguided loyalty and says this is
a good staff sergeant, this is a good gunny, he’s got
17 years in, no mind the fact that he was sleeping
with a corporal and he is married, we already took
him, we have already hammered him, he’s got a letter
of reprimand, let’s keep him. Why? There is a lack
of accountability that just befuddles me with the
commanding officers and the senior enlisted in the
Marine Corps. And I will tell you that. I am very,
very disappointed.
I see this stuff in court-martials (sic), I see
it in the behavior and just for the life of me I can’t
figure out why we have become so ecumenical? Why we
have become so soft? Where we’re gonna keep a
sergeant that absolutely doesn’t belong in the United
States Marine Corps. Why would we need to do that?
And the answer is we don’t. . . . I got commanding
6
officers of battalions and squadrons and units that
are not. I am not looking for a hatchet job. This
isn’t the era of the big axe. I am just looking for
Marines to be held accountable for what they do. That
is what I am looking for.
And I want the staff NCOs in here and I want the
officers in here, the commanding officers, and the
sergeants major to take a hard look at how we do
business. If you have a Marine that’s not acting
right, you’ve got a Marine that deserves to leave the
Corps, then get rid of them; it is as simple as that.
Id. at 54.
As noted above, the CMC followed up the Heritage Briefs
with White Letter 2-12, dated 3 May 2012, addressed to “All
Marines,” which highlighted that there is no place for sexual
assault in the Marine Corps and that it is a crime:
As a Marine Corps, we will take the same approach we
have taken to combat the threat of improvised
explosive devices over the last eight years and “get
to the left of the event.”
Id.“The Marine Corps has not spent the last ten years
defending our nation’s high principles abroad, only to
permit this type of behavior within our own ranks!”
Id. at 64. In his own handwriting, the CMC wrote:
“Marines . . . leaders . . . I need your immediate
attention to this matter!” Id.About two months later, the CMC sent out White Letter 3-12,
which sought to clarify his earlier Heritage Brief remarks.
White Letter 3-12 was addressed to: All General Officers, All
Commanding Officers, All Officers in Charge, and All Sergeants
Major, Master Gunnery Sergeants and Command Master Chiefs. The
subject line of this White Letter read “Leadership” and the CMC
stated:
While the Heritage Brief spoke in some detail
about the matters of accountability, discipline,
sexual assault and hazing, I want to be clear about
our ever-present responsibilities as senior leaders to
uphold the enduring tenets of the Military Justice
System. While the briefings express my strong
feelings about “getting the Corps back on a heading of
7
True North,” I am not directing or suggesting specific
administrative or military justice actions be taken
absent compliance with established law. My intent is
not to influence the outcome or response in any
particular case, but rather to positively influence
the behavior of Marines across our Corps. As senior
leaders, we have the inherent responsibility to ensure
the sanctity of our justice system, this includes the
presumption of innocence unless proven otherwise.
Id. at 135.
Next, the matter of whether or not a Marine
committed a sexual assault and what should happen,
will be determined based on the facts presented. I
expect all Marines involved in the military justice
process -- from convening authorities, to members, to
witnesses -- to make their own independent assessment
of the facts and circumstances of each case.
Id. at 136.
I’ve just spent the past two days at Quantico
discussing all of these issues with most of the
General Officers in our Corps. I stressed to
them the importance of taking sexual assault
seriously while fulfilling their responsibilities
as Commanders and as Convening Authorities under
the UCMJ. I directed each to ensure that the
content and intent behind this White Letter is
discussed in detail with each of their commanders
and throughout their organizations.
Id.IV. Unlawful Command Influence
In the wake of the Heritage Brief and two White Letters,
the defense filed a motion for appropriate relief alleging both
actual and apparent unlawful command influence. AE V. The
motion alleged that the CMC’s Heritage Brief and White Letter 2-
12 had the effect of tainting the potential members as the
target audience was Marine Officers and SNCOs. Additionally,
much of what the CMC discussed in the Heritage Brief and White
Letter 2-12 involved the subject of sexual assault -- one of the
offenses the appellant was charged with at his general court-
martial.
8
The Law
Unlawful command influence 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)). Article 37(a), UCMJ,
states in relevant part: “No person subject to this chapter may
attempt to coerce or . . . 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 . . . .” The mere
appearance of unlawful command influence may 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)). “Congress and this court are concerned not only
with eliminating actual unlawful command influence, but also
with ‘eliminating even the appearance of unlawful command
influence at courts-martial.’” United States v. Lewis, 63 M.J.
405, 415 (C.A.A.F. 2006) (quoting United States v. Rosser, 6
M.J. 267, 271 (C.M.A. 1979)). “[O]nce unlawful command
influence is raised, ‘we believe it incumbent on the military
judge to act in the spirit of the Code by avoiding even the
appearance of evil in his courtroom and by establishing the
confidence of the general public in the fairness of the court-
martial proceedings.’” United States v. Stoneman, 57 M.J. 35,
42 (C.A.A.F. 2002) (quoting Rosser, 6 M.J. at 271). This call
to maintain the public’s confidence that military justice
remain free from unlawful command influence follows from the
fact that even the “‘appearance of unlawful command influence is
as devastating to the military justice system as the actual
manipulation of any given trial.’” United States v. Simpson, 58
M.J. 368, 374 (C.A.A.F. 2003) (quoting Stoneman, 57 M.J. at 42-
43). A military judge has the inherent authority to intervene
and protect the court-martial from the effects of apparent
unlawful command influence.
To raise the issue of unlawful command influence at trial,
the defense is required to present “‘some evidence’” of unlawful
command influence. United States v. Biagase, 50 M.J. 143, 150
(C.A.A.F. 1999) (quoting United States v. Ayala, 43 M.J. 296,
300 (C.A.A.F. 1995)); see also Simpson, 58 M.J. at 373. The
defense must “show facts that, if true, constitute unlawful
command influence, and that the alleged unlawful command
influence has a logical connection to the court-martial, in
terms of its potential to cause unfairness in the proceedings.”
Biagase, 50 M.J. at 150 (citations omitted). If the defense
meets its burden, the Government must then, beyond a reasonable
9
doubt, either: (1) disprove the predicate facts on which the
allegation of unlawful command influence is based; or (2)
persuade the military judge that the facts do not constitute
unlawful command influence; or (3) prove at trial that the
unlawful command influence will not affect the proceedings. Id.
at 151.
Military Judge’s Ruling
After the trial defense counsel’s presentation of evidence
in support the unlawful command influence motion, the Government
conceded, and the military judge found, that the defense had
made a colorable showing of “some evidence” and that the burden
shifted to the Government. After reviewing the Government’s
answer (AE VI) and hearing argument, the military judge made the
following “findings” on the record:
[One:] the CMC of the Marine Corps has a Title 10 - -
a U.S.C. Title 10, U.S. Code responsibility to,
amongst other things, train, equip, administer,
recruit, organize, supply, and maintain the United
States Marine Corps. [Two:] There is nothing in the
record to suggest the CMC of the Marine Corps has
directed or suggested particular - - any particular
military justice actions or results contrary to the
established law. Three[:] There is nothing to suggest
that the CMC of the Marine Corps has attempted to
influence the outcome or response to any particular
case to include that of the case at bar, that of
Sergeant Easterly. Four[:] There is no evidence to
suggest [the] CMC of the Marine Corps exerted
influence to determine a case based on anything other
than the facts presented. Five[:] Nothing suggests
Commanding General, 2d Marine Air Wing convened this
court in response to anything the CMC has directed.
Six[:] Nothing suggests the CMC attempted to use rank
or position to change the outcome in any particular
case, and certainly not this particular case of
Sergeant Easterly. Rather, the CMC of the Marine
Corps used his rank and position to reach a wide
audience in order to best educate his Corps, which is
wholly consistent with his mandated Title 10
responsibilities as the CMC of the Marine Corps.
Seven[:] Established case law mandates that the
prohibition against UCI is not a prohibition against
educating a populace or addressing public or
congressional concerns. [Eight:] There is nothing to
suggest the CMC targeted members, but rather targeting
10
his leaders to set a standard, and to lead by example,
and to discourage sexual assault from ever occurring.
Nine[:] CMC spoke to leaders generally, not court-
martial members specifically, to insure standards are
upheld and no one turns a blind eye to misconduct.
Ten[:] There is no logical nexus of the CMC to the
particular trial of Sergeant Easterly. In fact, this
case is temporally and substantially remote from the
CMC of the Marine Corps’ remarks. Eleven[:] The
reasonable effect and purpose of the Heritage Tour was
to uphold longstanding tradition of discipline and
professionalism within the Marine Corps, not to
influence the court-martial process, achieve a
particular result in any particular court-martial, or
to achieve a particular result in the trial of
Sergeant Easterly.
Record at 69-70.
The military judge further stated: “With the above factors
in mind, defense counsel[’s] motion to dismiss based on unlawful
command influence is denied. Defense requests for other
extraordinary remedies, short of dismissal of charges, are also
denied.” Id. at 70. The trial defense counsel then
specifically asked the military judge if he was finding no
actual or apparent unlawful command influence, and the judge
answered in the affirmative. Id.
Despite stating that his ruling applied to both, the
military judge’s findings lack any reference to either actual or
apparent unlawful command influence or their respective legal
tests. Furthermore, despite the fact that the military judge
earlier agreed that the defense had met its initial burden of
offering “some evidence” of unlawful command influence, his
findings do not address how the Government effectively met its
burden of either disproving the predicate facts, proving that
those facts did not constitute unlawful command influence, or
proving that any unlawful command influence would not affect the
fairness of the proceedings. Biagese, 50 M.J. at 151. In these
regards, the military judge clearly erred.
Analysis and Discussion
Allegations of unlawful command influence are reviewed de
novo. United States v. Harvey, 64 M.J. 13, 19 (C.A.A.F. 2006);
United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999);
United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994). Our
review of whether the conduct of the CMC in this case created an
11
appearance of unlawful command influence is determined
objectively. Lewis, 63 M.J. at 415 (citing Stoneman, 57 M.J. at
42). The objective test for the appearance of unlawful command
influence is similar to the tests we apply in reviewing
questions of implied bias on the part of court members or in
reviewing challenges to military judges for an appearance of
conflict of interest. Id. “We focus upon the perception of
fairness in the military justice system as viewed through the
eyes of a reasonable member of the public. Thus, the appearance
of unlawful command influence will exist where an objective,
disinterested observer, fully informed of all the facts and
circumstances, would harbor a significant doubt about the
fairness of the proceeding.” Id.
Although the appellant focuses his appeal on the issue of
apparent unlawful command influence, our review on appeal must
necessarily consider whether actual unlawful command influence
was present in these proceedings as well as whether any apparent
unlawful command influence tainted the appellant’s trial.
Simpson, 58 M.J. at 374, 377; Stoneman, 57 M.J. at 42-43.
Since both parties and the military judge agreed at trial,
we will assume without deciding that the evidence offered on the
defense motion was “some evidence” sufficient to raise the issue
of unlawful command influence. Consequently, the burden shifts
to the Government to prove beyond a reasonable doubt that “the
fairness of the proceeding was not compromised by any unlawful
command influence.” United States v. Reed, 65 M.J. 487, 491
(C.A.A.F. 2008). We note, however, that the military judge’s
ruling occurred early in the trial, prior to voir dire and
assembly. In conducting our de novo review, we have the benefit
of the complete record of trial.
Actual Unlawful Command Influence
The appellant does not contend and we do not find any
evidence of actual unlawful command influence at trial or on
appeal. Major Emerich, the military judge who heard and decided
the unlawful command influence motion, was replaced by
Lieutenant Colonel (LtCol) Miracle for the trial. LtCol Miracle
did not restrict voir dire and liberally granted challenges for
cause, excusing nine of the 16 original members. Seven
potential members were dismissed as a result of challenges for
cause by the trial counsel, and the defense objected to the
removal of only one of them. The military judge sufficiently
explained on the record his concern for actual and implied bias
concerning this potential member and granted the challenge. The
12
panel members who either heard the CMC’s Heritage Brief or read
White Letter 2-12 were questioned during voir dire with respect
to whether either would have an adverse impact on their ability
to render an impartial judgment. See Stoneman, 57 M.J. at 41.
The members’ answers demonstrated that they did not feel any
pressure as a result of the CMC’s Heritage Brief or White
Letters, and there is no evidence that they believed they had to
achieve a certain outcome or an expected result from the
appellant’s court-martial. We also note that no member of the
appellant’s court-martial panel was challenged for cause by the
defense based on attendance at the Heritage Brief or because
they had read the White Letters. 6 Record at 153-266 and 283-350.
Finally, we have found nothing in the record to suggest that the
CMC’s Heritage Brief and White Letters improperly influenced
either the convening authority, staff judge advocate, or anyone
else associated with the appellant’s trial, to include the
members. We find beyond a reasonable doubt that the case was
not infected by actual unlawful command influence.
Apparent Unlawful Command Influence
Assuming without deciding that the Heritage Brief created
the appearance of unlawful command influence, we now consider
whether the Government has demonstrated beyond a reasonable
doubt that the fairness of any aspect of the proceedings was not
compromised. 7
In terms of apparent unlawful command influence on the
merits, we find that the Government has met its burden and we
find no apparent unlawful command influence as it relates to the
members’ findings. The best indicator of the lack of apparent
unlawful command influence on the merits is the fact that the
6
Of the members that were seated as part of the appellant’s court-martial
panel, three were challenged for cause by the defense based upon their
responses to questions at voir dire: Chief Warrant Officer J, Gunnery
Sergeant (GySgt) M, and GySgt J. None was challenged for unlawful command
influence as a result of the Heritage Brief and White Letters. With respect
to these members, the military judge denied each challenge for cause, and
they sat as members of the appellant’s court-martial panel.
7
The appellant has not raised, and we do not find, that the Article 32, UCMJ,
investigation conducted in this case and pretrial processing of the
appellant’s case for trial by general court-martial were tainted by the CMC’s
comments, as the Heritage Briefs and release of the White Letters occurred
post-referral. We also note here that the record contains an affidavit by
the convening authority, Commanding General, 2d Marine Aircraft Wing, which
indicates that, although he attended the Heritage Brief and read the White
Letters, the CMC’s comments would not influence him in executing his post-
trial responsibilities. We do not find, and the appellant has not alleged,
any prejudice in his post-trial processing by the convening authority.
13
appellant was acquitted of both specifications of rape, the most
serious offenses on the charge sheet and a principal focus of
the CMC’s comments during the Heritage Brief and White Letters.
Additionally, the trial defense counsel, in arguing against a
finding of guilty on the rape specifications, conceded in
closing argument that the appellant had sex with Ms. L
(adultery) and that he bit her multiple times after she told him
to stop (assault consummated by a battery):
And that’s what the facts truly indicate. Sure,
this is adultery. Okay. [The appellant] was married.
He had sex with Ms. [L]. Got it. Adultery. Fine. I
would agree this is assault, too. I mean, he bit her
or sucked on her. She didn’t want it. That’s an
unlawful touching. So [the appellant] assaulted her
and that assault was consummated by battery, touching,
unlawful touching.
Record at 814. In conceding the adultery charge, the trial
defense counsel implicitly conceded guilt on the false official
statement charge, in which the appellant disavowed having sexual
relations or intercourse with Ms. L. Finally, we find that the
evidence submitted at trial was more than sufficient to support
the member’s findings of guilty beyond a reasonable doubt. Thus
we are convinced beyond a reasonable doubt that a disinterested
observer would not harbor a significant doubt as to the fairness
of the proceeding.
We are likewise convinced beyond a reasonable doubt that
the sentence was not affected by any apparent unlawful command
influence. Factors that shaped our decision in this regard
include the lack of any indication in the record that any
witnesses failed or refused to testify on the appellant’s behalf
because they felt intimidated or discouraged from participating
in the trial. On the contrary, the evidence presented by the
defense in extenuation and mitigation included statements from a
warrant officer and two noncommissioned officers who provided
favorable evidence on the appellant's behalf. Defense Exhibit B
at 1-4.
In his assignment of error, however, the appellant
specifically avers that his sentence, which included a bad-
conduct discharge, total forfeitures, reduction to pay grade E-
1, and two years’ confinement is an overly harsh sentence and
therefore this court cannot be convinced beyond a reasonable
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doubt that apparent unlawful influence had no impact in his
case. 8 Appellant’s Brief of 8 Jul 2013 at 39-40. We disagree.
The appellant was sentenced for committing the following
misconduct: making a false official statement; assault
consummated by a battery; and, two specifications of adultery.
These offenses carry a maximum punishment of seven years and six
months confinement, reduction to pay grade E-1, total
forfeitures, and a bad-conduct discharge. During argument, the
trial counsel asked for the maximum sentence; the appellant, in
his unsworn statement and argument on sentence made by the trial
defense counsel, did not specify a particular punishment but
asked for an appropriate sentence. Record at 866, 867, 870-73.
During the presentencing case in aggravation, the members
heard testimony from Corporal (Cpl) B, Ms. B’s active duty
Marine husband, who was deployed to Afghanistan during the time
the appellant had the adulterous affair with his wife. Cpl B
testified about his emotional reaction upon being given the news
of the affair, resulting in his weapon being temporarily removed
from him. Id. at 850. He also indicated that he couldn’t eat
or sleep, lost a significant amount of weight, and asked to
remain in theater rather than return stateside. Id. at 852.
Additionally, Cpl B spoke of the betrayal he felt after
discovering that the man having the adulterous affair with his
wife was not only a Marine, but a fellow NCO as well. Id.
The members were also able to consider during their
sentencing deliberations the graphic pictures of Ms. L taken
after the assault, which depicted extensive bruising and bite
marks on much of her upper body. Additionally, the government
presented the testimony of Ms. L’s brother, who substantiated
the gravity of her injuries.
At the conclusion of the presentencing case by both sides
and after hearing argument, the military judge properly
instructed the members. The members are presumed to have
followed these instructions. United States v. Pollard, 38 M.J.
41, 52 (C.M.A. 1993) (citing United States v. Ricketts, 1 M.J.
78, 82 (C.M.A. 1975)). We are not persuaded that the CMC’s
Heritage Brief and White Letters caused the members to award the
appellant a more severe sentence than they would have
adjudicated otherwise. We are convinced beyond a reasonable
doubt that appellant's sentence was not tainted by apparent
unlawful command influence. We are convinced beyond a
reasonable doubt that an objective, disinterested observer,
8
The appellant has not made an assignment of error averring sentence
severity.
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fully informed of all the facts and circumstances, would not
harbor a significant doubt as to the fairness of the appellant’s
court-martial, to include the adjudged sentence. Accordingly,
we decline to grant relief.
V. Conclusion
The findings and sentence as approved by the convening
authority are affirmed.
Chief Judge MODZELEWSKI and Judge FISCHER concur.
For the Court
R.H. TROIDL
Clerk of Court
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