United States v. Brown ( 2018 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201700069
_________________________
UNITED STATES OF AMERICA
Appellee
v.
TYSON M. BROWN
Aviation Machinist’s Mate First Class (E-6), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Robert J. Crow, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Jacksonville, FL.
Staff Judge Advocate’s Recommendation: Commander George W.
Lucier, JAGC, USN.
For Appellant: Lieutenant Doug Ottenwess, JAGC, USN.
For Appellee: Lieutenant Clayton S. McCarl, JAGC, USN; Captain
Brian L. Farrell, USMC.
_________________________
Decided 21 June 2018
_________________________
Before H UTCHISON , P RICE , and F ULTON , Appellate Military Judges
_________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
_________________________
HUTCHISON, Senior Judge:
A general court-martial composed of members with enlisted representation
convicted the appellant, contrary to his pleas, of one specification of attempting
to patronize a prostitute, one specification of rape, and one specification of
aggravated assault in violation of Articles 80, 120, and 128, Uniform Code of
United States v. Brown, No. 201700069
Military Justice (UCMJ), 10 U.S.C. §§ 880, 920, and 928 (2012).1 The convening
authority (CA) approved the adjudged sentence of a reprimand, eight years’
confinement, total forfeiture of pay and allowances, reduction to pay grade E-
1, and a dishonorable discharge. Except for the dishonorable discharge, the CA
ordered the sentence executed.
The appellant alleges four assignments of error, three of which we address
in detail.2 First, he contends that his convictions for rape and aggravated
assault are legally and factually insufficient. Next, the appellant argues that
his conviction for aggravated assault represents an unreasonable
multiplication of charges because the same act underlying the aggravated
assault conviction was used to prove fear of death or grievous bodily injury
under the rape specification. Finally, the appellant avers that the referral of
charges evinces unlawful command influence since the State of Florida
declined to prosecute based on the same evidence and the decision to refer the
charges to court-martial was solely due to the perceived career ramifications
of CAs who do not refer sexual assault allegations to court-martial.3
Having carefully considered the record of trial and the parties’ submissions,
we are convinced that the findings and the sentence are correct in law and fact
and find no error materially prejudicial to the substantial rights of the
appellant. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
On the night of 11 March 2015, the appellant went to a strip club where
he consumed “three or four” mixed drinks.4 After approximately two hours at
the strip club, the appellant sent a text message to RH, whose advertisement
he had seen on a known prostitution website. RH called the appellant and they
arranged to meet in the early morning hours of 12 March 2015.
RH worked out of her home as a prostitute and admitted that she used the
money she earned to fund her addiction to crack cocaine. RH testified that she
1 The members acquitted the appellant of one specification of kidnapping, one
specification of burglary, and three additional specifications of rape.
2 In the fourth, summary assignment of error, the appellant argued the military
judge erred in instructing the members regarding reasonable doubt. In accordance
with our holding in United States v. Rendon, 75 M.J. 908, 915-17 (N-M. Ct. Crim. App.
2016), rev. denied, 76 M.J. 128 (C.A.A.F. 2017), we summarily reject the summary
assignment of error. United States v. Clifton, 35 M.J. 79, 81-82 (C.M.A. 1992).
3 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
4 Record at 789.
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had smoked “two rocks of crack cocaine”5 before meeting the appellant, but that
the effects of the drug had worn off by the time they met.
At the request of RH, the appellant arrived at RH’s home with a 12-pack of
beer and cigarettes. RH drank one of the beers and the appellant drank a
caffeinated, flavored alcoholic beverage while the two became acquainted.
After about 20 minutes at RH’s house, the appellant suggested they go to his
house because it would be more comfortable. Although RH admitted that she
did not like the idea of going to the appellant’s home because she could lose out
on other clients if she was not at home, she nevertheless agreed. At trial, both
the appellant and RH testified, but provided different accounts of what
transpired after they left RH’s house.
1. RH’s testimony
According to RH, on the drive to the appellant’s house she noticed a
handgun beneath the driver’s seat. RH told the appellant she was “scared
of . . . people with guns” and asked him why he had one.6 The appellant
responded that he was in the Navy and showed her “his badge,” which was
hanging from a lanyard on the rearview mirror.7 Once they arrived at the
appellant’s house, RH continued to drink the beer that the appellant had
purchased and the appellant drank a mixed drink he had made for himself.
Eventually the appellant “started getting a little aggressive and pull[ed] out
his penis” and began “touching” RH.8 RH testified that at this point, she asked
the appellant about money. The appellant went into his bedroom and returned
with 52 one-dollar bills. RH told the appellant that $52 was not enough and
asked the appellant to take her home.9 RH also testified that she was not
feeling comfortable in the appellant’s home; besides the appellant not having
enough money for her services, RH stated she had already “wasted . . . an hour-
and-a-half with [the appellant] and . . . he was getting a little aggressive and
he was getting . . . drunker.”10 RH expressed her frustrations in a Facebook
post she made while at the appellant’s house: “I hate chilling with drunk ass
5 Id. at 425.
6 Id. at 367.
7 Id. RH used the term “badge” to described the appellant’s military Common
Access Card.
8 Id. at 371.
9 RH testified that she discussed her price with the appellant both on the phone
prior to meeting him and at her house. The appellant told her that he “had $80 or $90
on him” and RH agreed that was enough. Id. at 359.
10 Id. at 372.
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Navy men, then I can’t get drunk, cause they do too much, uh, I’m going
home.”11
The appellant offered to pay more but indicated to her that they would need
to stop by an ATM. However, RH refused and told the appellant she wanted to
go home. On the drive back to RH’s house, the appellant pulled into the parking
lot of a strip club where, according to RH, the appellant pulled out his gun,
held it to her head, and demanded oral sex. Fearing she would be shot, RH
complied.12 After a few minutes, the owner of the strip club came out with a
flashlight and demanded they leave. After leaving the parking lot, the
appellant told RH that she was going to finish what she started and handed
her the one-dollar bills. RH tried to deescalate the situation and make the
appellant “feel comfortable.”13 When they arrived at RH’s house, she told the
appellant that she “would finish whatever [the appellant] wanted [her] to
finish” but asked him not to bring the gun in with him.14 The appellant agreed
and said he was going to leave the gun in the car—but unbeknownst to RH, he
did not.
Once back inside the house, RH and the appellant sat down on her living
room couch and continued drinking. After a few minutes of escalating sexual
behavior, RH invited the appellant to her bedroom. RH thought that if she did
what the appellant wanted, he would eventually leave. Once back in the
bedroom, RH and the appellant engaged in oral and vaginal intercourse.15 The
appellant then asked RH to have anal sex, but she declined. The appellant
became angry, pulled out his gun and hit RH on the left side of the face and
ribs, telling her, “[Y]ou’re going to do what I told you to do or I’m going to shoot
you.”16 RH described being “scared to death.”17 After permitting RH to get some
petroleum jelly for lubricant, the appellant removed the condom he was
wearing and had anal sex with RH.
After completing his sex act with RH, the appellant demanded his money
back. RH told the appellant that his money was in the living room beneath a
cushion on her love seat. The appellant then forced RH into the living room at
gunpoint and began searching for the money. While the appellant was
11 Id. at 384; Prosecution Exhibit (PE) 9.
12 The appellant was acquitted of this rape allegation.
13 Record at 392.
14 Id. at 393.
15 The appellant was acquitted of both rape specifications resulting from the oral
and vaginal intercourse.
16 Record at 399.
17 Id. at 401.
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preoccupied searching for the money, RH managed to unlock her front door
and ran naked out of her home.
RH initially ran and hid behind a large tree. She then heard the appellant
yell, “Bitch you think I’m playing,” followed by a gunshot.18 She then ran and
hid beneath a parked pickup truck until she saw one of her neighbors open his
door to let his dog out. RH ran for the open door and entered a residence
occupied by DB and OM. She quickly explained what was happening, asked to
use DB’s phone, and called 911.
2. The appellant’s testimony
After the appellant and RH arrived at his house, RH continued drinking
the beer the appellant had purchased and the appellant made himself a mixed
drink. Aside from noting that he and RH listened to music and continued
drinking, the appellant did not provide any additional details regarding the
time they spent together at his house. But, the appellant did testify that he
never gave RH any money at his house because “then she can decide not to do
nothing and I’m out of money.”19 The appellant explained that after nearly two
hours at his house, “[i]t was getting late and we both decided it was time to
go.”20
According to the appellant, during the car ride back to RH’s house, RH told
him that she wanted to make some money, unzipped the appellant’s pants and
began performing oral sex on him while he was driving. Unable to continue
driving, the appellant pulled over into the first parking lot he could find, which
happened to be a strip club.21 A few minutes later, the owner of the strip club
approached the vehicle, shining a light. The appellant, fearful it was the police,
quickly pulled up his pants while RH “jumped off of [him.]”22 The appellant
rolled down the passenger-side window—closest to RH—saw that the
individual coming towards them was not the police, and drove away after being
told he was on private property.
Once back at RH’s house, the appellant took his wallet, phone, keys, and
gun inside with him and “tucked them underneath” the side of the couch.23 The
appellant and RH then kissed before going back into RH’s bedroom, where they
had vaginal and anal intercourse. The appellant admitted that he took off his
18 Id. at 412.
19 Id. at 797.
20 Id. at 798.
21 This strip club is different than the one patronized earlier by the appellant.
22 Record at 799.
23 Id. at 800.
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condom and, at one point, RH left the bedroom and returned with petroleum
jelly. The appellant denied ever striking RH with his gun or threatening her
in any way. After they finished having sex, the appellant testified that he got
dressed, but RH remained naked, and they went back into the living room so
he could retrieve his belongings. Although he found his gun where he had left
it, the appellant could not find his keys, wallet or phone. After searching both
the living room and bedroom, raising seat cushions, and looking underneath
furniture—“I went through everything”—the appellant still could not find his
remaining items.24 The appellant asked RH where his keys were, but RH said
she did not have them. Soon after, RH “took off like a bull out the door.”25 The
appellant “bolted after her” and fired his gun into the air, yelling “Bitch where
my keys at?”26
Sheriff’s deputies responded to RH’s 911 call and found the appellant
hiding beneath an empty trailer-home located near RH’s house. A short time
later, they found the appellant’s handgun nearby. The appellant’s wallet and
phone were inside the appellant’s car, but his keys were never found. During
a lengthy police interrogation, the appellant initially told detectives that he
met RH at the strip club and that they never had sex. At trial, the appellant
admitted that he lied repeatedly during his interrogation—“almost 40 times”—
because he had a 3-year-old daughter and a military career and he had “just
patronized a prostitute and fired a gun in the air.”27
Additional facts necessary to resolution of the assignments of error are
included below.
II. DISCUSSION
A. Factual and legal sufficiency
The members found the appellant guilty, by exceptions and substitutions,
of raping RH—penetrating her anus with his penis by placing her in fear that
she would be subjected to death or grievous bodily harm, to wit: “by striking
her head with a dangerous weapon, to wit: a loaded firearm.”28 The members
also found the appellant guilty, by exceptions, of aggravated assault for
24 Id. at 804.
25 Id. at 805
26 Id. at 805, 806.
27 Id. at 807-08.
28 Id. at 945. The appellant was originally charged with rape of RH, “to wit:
penetration of her anus with his penis, by placing her in fear that she would be
subjected to death or grievous bodily harm, to wit: holding a loaded firearm to her
head.” Charge Sheet.
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striking RH on the head with a dangerous weapon, “to wit: a loaded firearm.”29
The appellant argues that his convictions for rape and aggravated assault are
legally and factually insufficient because RH was an “incredible witness,”
whose account of the night is uncorroborated, and cannot be trusted because it
is “clouded by her crack cocaine use.”30 We disagree.
We review questions of legal and factual sufficiency de novo. United States
v. Turner, 25 M.J. 324, 324 (C.M.A. 1987). The test for legal sufficiency is
“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) (citing Turner, 25 M.J. at 324). In applying this test, “we
are bound to draw every reasonable inference from the evidence of record in
favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F.
2001) (citations omitted).
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) (citing Turner, 25 M.J. at 325; Art. 66(c), UCMJ), aff’d on other
grounds, 64 M.J. 348 (C.A.A.F. 2007). In conducting this unique appellate role,
we take “a fresh, impartial look at the evidence,” applying “neither a
presumption of innocence nor a presumption of guilt” to “make [our] own
independent determination as to whether the evidence constitutes proof of
each required element beyond a reasonable doubt.” United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
The appellant points to several perceived problems with RH’s version of
events. First, RH admitted to using crack cocaine in the hours leading up to
encounter with the appellant. Second, RH suffered from bipolar disorder and
admitted that she was not taking her prescribed antidepressant and mood-
stabilizing medications. Third, the appellant points to the testimony of OM,
one of RH’s neighbors who lived in the house she entered when fleeing the
appellant. OM testified that RH was “paranoid and skittish” and that she told
29 Record at 945. The members excepted the words “and ribs” from the
specification. Charge Sheet.
30 Appellant’s Brief of 29 Sep 2017 at 14.
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OM that her intent was “to get [the appellant] back to her crib and pretty much
get as much money as she could from him to get high.”31
The appellant also noted other discrepancies in the government’s theory of
the case. RH testified she saw the appellant’s “badge” on a lanyard hanging
from the rearview mirror, yet the appellant’s military Common Access Card
was found in his wallet and crime scene photos show no lanyard hanging from
the rearview mirror. The owner of the strip club where the appellant and RH
parked on their way back to RH’s house testified that the occupants of the car
were “laughing” and “giggling” and the passenger did not appear to be in
distress.32 RH testified that after fleeing her house naked, she hid underneath
a truck, but she showed no signs of dirt, bruising, scratches or cuts despite the
ground beneath the truck being covered in dirt and pine needles. Finally, the
appellant’s forensic consultant testified that photographs he reviewed of the
victim did not reveal any “pattern injury” on RH’s head consistent with being
struck by a hand gun.33 Based on all of these discrepancies, the appellant
contends that we cannot rely on RH’s testimony and cannot be convinced
beyond a reasonable doubt of his guilt.
Despite the appellant’s assertions, however, RH’s version of her encounter
with the appellant is corroborated. RH’s neighbor, DB, testified that he heard
a gunshot, and then less than five minutes later, RH ran into his home
“[n]aked, distraught, looking upset, definitely scared.”34 RH used DB’s cell
phone to call 911. The recorded 911 call captured RH’s fear as she described in
hushed tones how the appellant “came in and raped [her] . . . hit [her] upside
the head with a gun . . . he was going to shoot [her] in the head.”35 A detective
responding to the scene testified that he observed swelling to RH’s “eyebrow
area . . . and she also had slight swelling to the cheek[.]”36 A Sexual Assault
31 Record at 734, 735. OM admitted during cross-examination that he was “a two-
time convicted felon”, had spent the night of the incident playing video games, and had
smoked marijuana “just a few hours before [he] saw [RH.]” Id. at 736.
32 Id. at 719.
33 Id. at 764.
34 Id. at 465. DB and OM were roommates, although DB testified that he did not
know OM’s “actual real name”—referring to him instead by a nickname—and
explained that OM and he “used to party together and [OM] needed a place to stay so
I let him crash.” Id. at 463.
35 PE 3; Appellate Exhibit (AE) LXII at 1.
36 Record at 540; see also PE 1 at II, JJ, KK, LL.
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Nurse Examiner testified that she observed swelling on RH’s scalp near the
hairline.
Importantly, the appellant admitted that he lied almost 40 times when
initially questioned by the police. Although the appellant contends that he did
so because he was worried about his career and his daughter after he had been
caught patronizing a prostitute and discharging his firearm, his later
admissions reveal a different concern. After finally admitting that he had
vaginal intercourse with a prostitute, the appellant continued to deny that he
had anal sex:
[Appellant]: No anal sex.
[Jacksonville Sheriff’s Office (JSO)]: No anal sex.
[Appellant]: There couldn’t have been anal sex.
JSO: Why is that?
[Appellant]: I don’t remember that.
JSO: What do you mean it couldn’t have been?
[Appellant]: I don’t think we had no—we didn’t have no anal—
couldn’t have been no anal sex. You’d know if you have anal
sex.37
Once the appellant confessed to soliciting a prostitute and to engaging in
vaginal intercourse with her, his purported reason for lying to the police was
extinguished, leaving no explanation for his continued denials of engaging in
anal sex with RH if she was a willing participant. Rather, we find his denial of
engaging in anal sex with RH evidence of consciousness of guilt.
RH’s testimony was persuasive, and her actions—running naked from her
home and calling 911—as well as the injuries observed are consistent with
being raped and assaulted by the appellant. Although the appellant identified
inconsistencies in RH’s story, we are mindful that proof beyond a reasonable
doubt does not mean that the evidence must be free from conflict. Rankin, 63
M.J. at 557. Indeed, the members acquitted the appellant of several
specifications where RH’s testimony was contradicted or called into question
by other evidence. Regardless, we “may believe one part of a witness’ testimony
and disbelieve another.” United States v. Diaz, 61 M.J. 594, 599 (N-M. Ct.
Crim. App. 2005) (citing United States v. Harris, 8 M.J. 52, 59 (C.M.A. 1979)).
Finally, we are not persuaded by the appellant’s self-serving testimony,
wherein he portrays himself as a potential victim of larceny.
After carefully reviewing the record of trial and considering all of the
evidence in a light most favorable to the prosecution, we are convinced that a
37 PE 5; AE LVII at 34.
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reasonable factfinder could have found the appellant raped RH and assaulted
her with a means or force likely to cause death or grievous bodily harm.
Furthermore, weighing all the evidence in the record of trial and making
allowances for not having personally observed the witnesses, we too are
convinced beyond a reasonable doubt of the appellant’s guilt.
B. Unreasonable multiplication of charges
The appellant contends that his conviction for aggravated assault
represents an unreasonable multiplication of charges since the underlying act
constituting the means or force likely to produce death or grievous bodily
harm—“striking [RH] on the head with a dangerous weapon, to wit: a loaded
firearm”—was the same act that made RH fear death or grievous bodily harm
under the rape specification.
“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” RULE FOR
COURTS-MARTIAL (R.C.M.) 307(c)(4), MANUAL FOR COURTS-MARTIAL (MCM),
UNITED STATES (2016 ed.). Unreasonable multiplication of charges is a concept
distinct from multiplicity. United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001). It “addresses those features of military law that increase the potential
for overreaching in the exercise of prosecutorial discretion.” Id. The appellant
did not raise this issue at trial and, therefore, forfeits this issue on appeal.
United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). “Although forfeiture
of an allegation of error normally requires the appellant to show plain error,
the widely used Quiroz test for unreasonable multiplication of charges
incorporates forfeiture of the issue.” United States v. Johnston, 75 M.J. 563,
571 (N-M. Ct. Crim. App. 2016) (citing Gladue, 67 M.J. at 313); cf. Quiroz, 55
M.J. at 338.
Applying Quiroz, we consider five non-exclusive factors to determine
whether there is an unreasonable multiplication of charges:
(1) Whether the appellant objected at trial;
(2) Whether each charge and specification is aimed at distinctly separate
criminal acts;
(3) Whether the number of charges and specifications misrepresents or
exaggerates the appellant’s criminality;
(4) Whether the number of charges and specifications unreasonably
increases the appellant’s punitive exposure; and,
(5) Whether there is any evidence of prosecutorial overreaching or abuse in
the drafting of the charges.
See Quiroz, 55 M.J. at 338-39. No one factor is dispositive. Instead, these
factors are weighed together, and “one or more . . . may be sufficiently
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compelling[.]” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012). We
now examine each of the factors.
1. Whether the appellant objected at trial
This factor favors the government as the appellant did not object at trial.
2. Whether the rape specification and aggravated assault specification are
aimed at distinctly separate criminal acts
First, aggravated assault as charged here is not a lesser included offense of
the rape specification as excepted and substituted by the members. United
States v. Riggins, 75 M.J. 78, 84-85 (C.A.A.F. 2016) (the “distinction between
physical contact (for assault consummated by a battery) and a mental state of
fear . . . (for sexual assault and abusive sexual contact) further demonstrates
that assault consummated by a battery contains an element that is not
included in the sexual assault and abusive sexual contact offenses charged
here”) (citations omitted). The appellant’s aggravated assault conviction
required that the weapon be used in a manner “likely to produce death or
grievous bodily harm.”38 Conversely, the appellant’s rape conviction had no
such requirement; rather the government needed only to prove that RH feared
that she would be subjected to death or grievous bodily harm—not that the
weapon was used in a manner likely to produce death or grievous bodily harm
when he struck her with it.
Second, despite the appellant’s assertion that the aggravated assault and
rape specifications “were the exact same transaction,” the testimony of RH
reveals that, in fact, each was a separate and distinct act, separated by some
short period of time.39 RH testified that the appellant hit her on the side of the
head after he asked for anal sex and she declined.40 After the appellant
attempted to penetrate her, RH asked if she could get some lubricant. The
appellant relented and RH left the bedroom and returned with petroleum jelly.
RH testified she then applied the petroleum jelly and the appellant had anal
sex with her. RH testified that she was “scared” and had “no choice.”41 As a
result, the appellant raped RH by placing her in fear—a fear produced by
previously pistol whipping her with a loaded gun—that she would be subjected
to death or future grievous bodily harm. Therefore, we conclude the second
Quiroz factor favors the government.
38 MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV,
¶ 54.b.(4)(a)(iv),
39 Appellant’s Brief at 25.
40 Record at 398.
41 Id. at 400.
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3. Whether the number of charges and specifications misrepresents or
exaggerates the appellant’s criminality
This factor, too, favors the government. As noted above, the rape and
aggravated assault charges represent different aspects of the appellant’s
behavior. The appellant’s rape conviction represents the criminality involved
in committing a sexual act on RH by placing her in fear for her life, while his
aggravated assault conviction represents the criminal aspect of using, in a
manner likely to produce death or grievous bodily harm, his loaded gun as a
bludgeon.
4. Whether the number of charges and specifications unreasonably increases
the appellant’s punitive exposure
Because the appellant’s rape charge carried a maximum punishment of
confinement for life without the eligibility for parole, the aggravated assault
specification did not increase the appellant’s punitive exposure. United States
v. Anderson, 68 M.J. 378, 386 (C.A.A.F. 2010). This factor also favors the
government.
5. Whether there is any evidence of prosecutorial overreaching or abuse in
the drafting of the charges
Finally, there is no evidence of prosecutorial overreaching since the rape
specification as originally charged did not include language similar to that
charged in the aggravated assault specification.42 Rather, the members found
the appellant guilty through exceptions and substitutions. As a result, we
conclude this factor, too, favors the government.
Finding all the Quiroz factors weigh in favor of the government, we
conclude that the charges were not unreasonably multiplied.
C. Unlawful command influence
The appellant contends that after the State of Florida decided not to
prosecute the appellant for sexual offenses because of a lack of evidence, the
CA referred the charges and specifications against the appellant to court-
martial because she was under pressure to prosecute sexual assault cases. The
appellant cites a report from a subcommittee of the congressionally-mandated
Judicial Proceedings Panel as evidence that CAs feel pressure to refer cases to
courts-martial because of public and congressional interest.43
42 See Charge Sheet. The referred rape specification alleged that the appellant
place RH in fear by “holding a loaded firearm to her head.”
43 See Appellant’s Brief at Appendix 1.
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We review allegations of unlawful command influence (UCI) de novo.
United States v. Harvey, 64 M.J. 13, 17 (C.A.A.F. 2006).44 UCI may be actual,
resulting in real prejudice to an accused, or apparent, with no discernible effect
on an accused but resulting in a loss of confidence in the fairness of our military
justice system.
An accused has the burden of raising a claim of UCI and must “(1) show
facts which, if true, constitute [UCI]; (2) show that the proceedings were unfair;
and (3) show that [UCI] was the cause of the unfairness.” United States v.
Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999) (citing United States v. Stombaugh,
40 M.J. 208, 213 (C.M.A. 1994)). However, the appellant’s showing must be
“more than mere allegation or speculation.” Id. at 150 (citation omitted). If the
appellant meets this burden, the burden shifts to the government to rebut “by
persuading the appellate court [beyond a reasonable doubt] that the [UCI] had
no prejudicial impact on the court-martial.” Id. at 151.
Alternatively, an appellant may raise a claim of apparent UCI by showing
“some evidence” of “facts, which if true, constitute [UCI]” and that “this [UCI]
placed an intolerable strain on the public’s perception of the military justice
system because an objective, disinterested observer, fully informed of all the
facts and circumstances, would harbor a significant doubt about the fairness
of the proceeding.” United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017)
(citations and internal quotation marks omitted). If an appellant presents
some evidence, the burden shifts to the government to rebut the allegations
beyond a reasonable doubt by proving the proffered facts do not exist, that they
do not constitute UCI, or that they do not place an intolerable strain on public
perception of the fairness of the proceeding. Id.
Here, the appellant has failed to meet his threshold requirement for either
actual or apparent UCI. The appellant merely speculates that the CA referred
charges to court-martial because of external pressures. Yet, the record before
us reveals that both the Article 32, UCMJ, preliminary hearing officer (PHO)
and the staff judge advocate (SJA), recommended to the CA that she refer the
appellant’s case to general court-martial. A CA “merely applies a reasonable
grounds standard in determining whether to refer charges to a general court-
martial[.]” Id. at 250 (citing R.C.M. 601(d)(1)). Armed with both the PHO’s
report and her SJA’s recommendation, the CA had reasonable grounds to refer
the charges and the appellant has provided no evidence that the CA, instead,
44 Although the appellant first raises UCI on appeal, UCI is never waived. See
United States v. Baldwin, 54 M.J. 308, 310 n.2 (C.A.A.F. 2001) (“We reject the
Government’s claim of waiver. We have never held that an issue of unlawful command
influence arising during trial may be waived by a failure to object or call the matter to
the trial judge’s attention.”).
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United States v. Brown, No. 201700069
only referred the charges to general court-martial because of some external
pressure. Consequently, the appellant’s claim of UCI fails.
III. CONCLUSION
The findings and sentence are affirmed. The supplemental court-martial
order shall reflect that the appellant is entitled to 239 days’ confinement credit.
United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
Judge PRICE and Judge FULTON concur.
For the Court
R.H. TROIDL
Clerk of Court
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