United States v. Mader III ( 2022 )

Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Thomas E. MADER III
Sergeant (E-5), U.S. Marine Corps
Appellant
No. 201800276 (f rev)
_________________________
Decided: 19 May 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
upon further review following remand from
the United States Court of Appeals for the Armed Forces
Military Judge:
Leon J. Francis
Sentence adjudged 4 May 2018 by a general court-martial convened at
Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, consisting of mem-
bers with enlisted representation. Sentence approved by the convening
authority: reduction to E-1, confinement for 190 days, forfeiture of all
pay and allowances, and a bad-conduct discharge.
For Appellant:
Major Mary Claire Finnen, USMC
For Appellee:
Lieutenant Commander Jeffrey S. Marden, JAGC, USN
Major Kerry E. Friedewald, USMC
United States v. Mader, NMCCA No. 201800276
Opinion of the Court
Senior Judge STEPHENS delivered the Opinion of the Court, in which
Chief Judge MONAHAN and Judge DEERWESTER joined.
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
STEPHENS, Senior Judge:
This case involves hazing and assault committed against junior Marines.
It is now before us a second time. In 2020, we found the evidence for one of
Appellant’s specifications for hazing to be factually insufficient and set it aside
and dismissed it with prejudice. But we affirmed a conviction for hazing for
Appellant calling a junior Marine a derogatory racial name along with affirm-
ing the remaining four specifications of assault consummated by battery for
punching the same junior Marine in the stomach and for burning three other
junior Marines with a cigarette. We affirmed the burning specifications owing
to our belief that the junior Marines could not have legally consented to such
an action. 1 In 2021, the Court of Appeals for the Armed Forces [CAAF] affirmed
our decision with respect to one of Appellant’s hazing specifications and for one
of his assault specifications for punching a junior Marine in the stomach. But
CAAF reversed our opinion concerning whether the junior Marines could law-
fully consent to being burned with cigarettes and remanded the case. 2
Appellant asserts two Assignments of Error [AOE]: that (1) the specifica-
tions for burning the junior Marines with cigarettes were legally and factually
insufficient because Appellant believed they consented and it was reasonable
under the circumstances to have such a belief; and (2) Appellant’s use of a de-
1 See United States v. Mader, 79 M..J. 803 (N-M. Ct. Crim. App. 2020) [Mader I].
2 See United States v. Mader, 81 M.J. 105 (C.A.A.F. 2021) [Mader II].
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Opinion of the Court
rogatory racial name toward one of the junior Marines was legally and factu-
ally insufficient because the junior Marine did not feel abused, humiliated, op-
pressed, or demeaned. 3
We now find the evidence for Appellant’s findings for burning the junior
Marines with cigarettes to be factually insufficient and we set aside and dis-
miss those specifications.
This leaves Appellant with findings of guilt—previously affirmed by
CAAF—for a single specification of hazing in violation of Article 92, Uniform
Code of Military Justice [UCMJ], 4 by calling a junior Marine a derogatory
name and a single specification of assault consummated by battery in violation
of Article 128, UCMJ, for punching that same junior Marine in the stomach.
We reassess the sentence and take action in our decretal paragraph.
I. BACKGROUND 5
A. Saturday Evening at the Barracks
Appellant was a data Marine in the communications platoon of Third Bat-
talion, Third Marine Regiment [3/3] at Marine Corps Base [MCB] Hawaii, Ka-
neohe Bay, Hawaii. He had been at 3/3 for about three years and was days
away from executing permanent change of station orders to recruiting duty in
the continental United States. On the Saturday before he left, Appellant went
to one of the barracks where some of the 3/3 data Marines lived. The day before,
most of them had returned to MCB Hawaii from a lengthy, large-scale training
exercise on the big island of Hawaii at the Pohakuloa Training Area [PTA].
Appellant went to see Sergeant (E-5) [Sgt] Alpha 6 from the data section,
who lived on the third deck of this particular barracks. Private First Class (E-2)
[PFC] Bravo and PFC Charlie were roommates on the second deck. Lance Cor-
poral (E-3) [LCpl] Delta and LCpl Echo were also outside the barracks at a
smoke pit. Except for LCpl Delta, these 3/3 data Marines had just returned
from PTA. The data section had its “ups and downs” at the exercise, and some
3 The second AOE is raised pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982). We have reviewed this AOE and find no error. See United States v.
Matias, 25 M.J. 356, 363 (C.M.A. 1987).
4 10 U.S.C. § 892.
5 We reproduced the “Background” section from Mader I nearly verbatim.
6 All names in this opinion, other than those of Appellant, the judges, and counsel,
are pseudonyms.
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Opinion of the Court
Marines had been relieved for poor performance. 7 That night, the mood shifted
between drinking and having fun and more serious conversations about morale
and life in the Marine Corps. Appellant had a bottle of whiskey with him. He
drank that mixed with soda. Sergeant Alpha was also drinking, as was PFC
Bravo, who eventually became drunk.
When Appellant was on the third deck talking and drinking with Sgt Al-
pha, he decided to go down to the second deck to PFC Charlie and PFC Bravo’s
room. Seeing LCpls Delta and Echo down in the smoke pit, Appellant called
down to them. When Appellant got to PFC Charlie’s room, he walked up to
him, made a “knife hand,” traced it down his chest, and punched him in the
stomach. Appellant then called PFC Charlie, who is Puerto-Rican, a “beaner
version of his [Appellant’s] cousin.” 8 Lance Corporals Delta and Echo wit-
nessed this interaction.
A few minutes afterwards, the group ended up on the catwalk outside of
Sgt Alpha’s room. Most of them went inside, but Appellant and PFC Bravo
stayed outside. Appellant handed PFC Bravo the bottle of whiskey and said,
“Here, take a swig” 9 or “take a shot.” 10 Private First Class Bravo took the bottle
and started drinking very quickly, causing Appellant to tell him to “calm down”
and try to pull the bottle away. 11 That junior Marine continued to drink that
night, including sharing a glass of whiskey and soda with Appellant.
At some point, the conversation turned to Appellant and another sergeant’s
plans the next day to hike up Kansas Tower Hill [KT] on MCB Hawaii. Appel-
lant said he noticed PFC Bravo appeared to be in better shape and called him
a “savage,” 12 and asked if he wanted to join the KT hike. Appellant then jabbed
him a few times in the stomach and pressed his head forcefully up against his.
Appellant also asked if PFC Bravo wanted to go to the gym with him the next
day, which, according to Appellant, he expressed interest in doing.
Sometime afterwards, Appellant was with PFC Bravo and LCpls Delta and
Echo on the catwalk outside Sgt Alpha’s room. Private First Class Charlie was
inside Sgt Alpha’s room with the door closed. The conversation turned to the
7 R. at 590.
8 R. at 372, 513, 564. The record indicated the word “beaner” is a derogatory epithet
referring to persons of Mexican or Hispanic descent.
9 R. at 408.
10 R. at 761.
11 R. at 762.
12 R. at 764.
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Opinion of the Court
problems with the PTA exercise and morale in the communications platoon.
Appellant brought up that he and others were “burned” with a cigarette when
he joined the platoon as a way of bonding. With this, Appellant took his ciga-
rette and burned the chest of both PFC Bravo and LCpl Echo and LCpl Delta’s
shoulder. None of the junior Marines manifested any physical or verbal signs
of lack of consent. The socializing continued for some time into the evening
without incident.
The following morning, Appellant exchanged text messages with PFC
Bravo about going to the gym. Due to his hangover, he declined, but Appellant
still came to his room. He brought the junior Marine a dress cover that did not
fit him. Appellant also stopped by LCpl Echo’s room to inspect the cigarette
burn. When Appellant asked LCpl Echo about his burn, he responded, “I
wouldn’t worry about it.” 13 None of the junior Marines reported the incident.
Two days later, Appellant left Hawaii. When one of the platoon’s other lance
corporals found out about the incident, he reported it, prompting a criminal
investigation.
Appellant was in the process of executing his PCS orders to his next duty
station. He and his wife, who was pregnant with their first child, were in Penn-
sylvania. Appellant’s Orders were changed and he was recalled. Without any
explanation from either his new or his old command, he returned to Hawaii.
After being back at 3/3 for just over three weeks, his command placed him in
pretrial confinement. Ten days later, the Government preferred charges
against him. Ten days after that, he waived his right to a preliminary hearing
under Article 32, UCMJ.
B. Appellant’s General Court-Martial
After nearly six months in pretrial confinement, the contested phase of Ap-
pellant’s court-martial commenced. His members’ trial lasted four days. The
Government presented eight different witnesses and submitted several exhib-
its—including photos of the junior Marines’ burns. Appellant testified on his
own behalf, part of which was rebutted by testimony from LCpl Delta. Appel-
lant denied calling PFC Charlie a “beaner,” and he denied punching him. He
stated he believed the junior Marines consented to being burned. He admitted
he struck PFC Bravo in the stomach but testified he did so in jest and to con-
gratulate PFC Bravo on his increased fitness level.
13 R. at 616.
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Opinion of the Court
1. Evidence of Appellant Burning the Junior Marines with a Cigarette
a. Private First Class Bravo
Of the three junior Marines, PFC Bravo was the most intoxicated that even-
ing and admitted to not being able to remember many details. He testified that
he did not “remember consenting to anything.” 14 He could not recall pulling
down his own shirt, though in an earlier interview with the trial counsel, it
appears he said just that. 15 He acknowledged there were no burn marks on the
shirt he wore that night and maintained that either he or Appellant pulled
down his shirt to inflict the burn mark. When he was burned, PFC Bravo was
standing at parade rest, but he described that as a voluntary decision because
he was trying to look and feel more sober.
Lance Corporal Delta testified that Appellant held up his cigarette and said
to PFC Bravo, “Okay, where do you want it?” 16 Appellant then approached him,
pulled his shirt collar down, placed the cigarette up against his skin, and took
a drag on the cigarette for about three to five seconds. Lance Corporal Echo
testified that Appellant placed the cigarette on PFC Bravo’s chest and took
“two or three” puffs. 17 He also could not remember whether PFC Bravo pulled
down his own shirt or not.
b. Lance Corporal Echo
Lance Corporal Echo admitted he pulled down his own shirt for Appellant
after he burned PFC Bravo. He also admitted it was after Appellant said to
him, “You get one too.” 18 But, he maintained he only pulled his shirt down be-
14 R. at 477.
15 The trial counsel’s “proover notes” were not admitted. Because this was an ap-
pellate exhibit used for cross-examination, rather than admitted evidence, we do not
consider this document for factual sufficiency review. United States v. Beatty, 64 M.J.
456 (C.A.A.F. 2007). However, when shown the notes, PFC Bravo indicated they were
the notes taken during his conversation with the trial counsel and that he recognized
some of the notes as accurately recounting his prior statements. We consider this line
of questioning solely for its impeachment value relating to PFC Bravo’s ability to ac-
curately recall these events and its tendency to show PFC Bravo had a better recall of
facts that tended to inculpate vice exonerate Appellant.
16 R. at 522.
17 R. at 568.
18 R. at 607.
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Opinion of the Court
cause he was told to do something by a superior. However, LCpl Delta contra-
dicted LCpl Echo’s testimony about his own actions. He testified that LCpl
Echo did not pull down his own shirt.
c. Lance Corporal Delta
Lance Corporal Delta testified that after Appellant burned the other two
junior Marines, he turned to him. Appellant had only said, “Where do you want
it” to the group once. 19 Both PFC Bravo and LCpl Echo had just been burned
on their chest area beneath their collar. Lance Corporal Delta maintained that
after watching Appellant burn both of the other Marines in the same place,
Appellant came up to him, pulled up his shirt sleeve, and burned him on the
shoulder. In addition, LCpl Delta denied he ever previously told the trial de-
fense counsel that he moved his shirt or told Appellant he wanted to be burned
on his chest.
d. Appellant’s Testimony
Appellant testified to a different order of the burnings. According to the
junior Marines, it was PFC Bravo, LCpl Echo, and then LCpl Delta. Appellant’s
testimony was generally similar, but diverged in certain aspects. He testified
that as he told the junior Marines about getting “burned” when he joined the
communications platoon, he showed them his burn mark. Then, according to
Appellant, the following exchange occurred:
[Appellant]: Here, I’ll give you one.
[LCpl Delta]: Okay.
[Appellant]: No, I am just kidding. I wouldn’t do that.
[LCpl Delta]: No. Do it. I want one! 20
Appellant testified that LCpl Delta wanted it on his forearm, but he chose
not to burn him there because it would be easily visible. Lance Corporal Delta
then said, “You could just move it up on my arm,” and pushed his own shirt-
sleeve up. 21 Appellant then burned him. After that, Appellant burned LCpl
Echo and then PFC Bravo. However, these two junior Marines were both
burned on the chest and below the collarbone as to avoid detection by medical
personnel when getting required vaccines. Lance Corporal Echo told Appellant
19 R. at 539.
20 R. at 777.
21 R. at 783.
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Opinion of the Court
he could burn him on his chest and pulled down his own shirt collar, as did
PFC Bravo.
After this, the group continued socializing for another few minutes. Then
Appellant gave PFC Bravo a “piggyback” ride down to the second deck to his
room so he could change his shirt. At this point, Appellant suggested he go to
sleep due to his intoxication, but PFC Bravo said he wanted to go back up-
stairs. 22 The Marines continued drinking and socializing for some time.
Appellant testified he sent text messages to PFC Bravo the next morning,
asking about him and inviting him to the gym. Appellant also came to the bar-
racks and saw PFCs Bravo and Charlie, and LCpl Echo, and gave them a dress
cover that did not fit him. None of the junior Marines reported the incidents of
the previous night, nor appeared inclined to do so.
2. The Military Judge’s Instructions on Consent
The parties disagreed on the scope of the instruction the military judge
should give to the members concerning assault consummated by a battery.
Specifically, the Government urged the military judge to not include “mistake
of fact” as to consent in the standard instructions or allow the Defense to even
argue it. 23 The Government argued the rank disparity between Appellant and
the junior Marines made it per se unreasonable for him to mistakenly believe
they consented. The Defense requested language from Hawaii’s pattern jury
instructions that placed mistake of fact closer to the elements of assault con-
summated by a battery. 24 The military judge was not persuaded by either
party’s arguments and gave the standard instruction on a reasonable mistake
of fact from the Military Judge’s Benchbook [Benchbook]. 25
3. The Government’s Rebuttal to Appellant’s Testimony
During Appellant’s testimony, he described how he conducted physical
training [PT] for the data Marines during down-time at work. He had the Ma-
rines do pull-ups and other exercises. Over Defense objection, the military
judge asked a panel member’s three-part question. 26 The questions were
whether Appellant was the only non-commissioned officer [NCO] present with
22 R. at 791.
23 App. Ex. XXXI.
24 R. at 921.
25 See Dept. of the Army Pam. 27-9, Military Judges’ Benchbook, para. 5-11-2.
(Sept. 10, 2014) [Benchbook].
26 App. Ex. XXIII.
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Opinion of the Court
junior Marines during these PT sessions, how long they lasted, and whether
Appellant “PT’d” alongside the Marines or merely instructed them. When
asked, Appellant responded there were other NCOs present, the sessions
would last approximately 10 to 15 minutes, and he would PT with the junior
Marines.
In rebuttal, the military judge, over Defense objection, allowed the Govern-
ment to present additional testimony from LCpl Delta. The Government prof-
fered LCpl Delta’s testimony would directly rebut Appellant’s testimony by de-
scribing how Appellant entered his barracks room at 0100—on the first night
LCpl Delta joined 3/3—and made him conduct physical training while Appel-
lant watched.
The Defense objected to this testimony as improper under Military Rule of
Evidence [M.R.E.] 403 and 404(b) and as a discovery violation. The Govern-
ment demonstrated that it had in fact disclosed this statement to the Defense
(but for some reason did not charge this conduct as a separate hazing offense).
The military judge found that because the testimony was offered to specifically
rebut Appellant’s response to a member’s question, and witness credibility was
paramount, the danger of unfair prejudice did not substantially outweigh its
probative value.
Lance Corporal Delta testified that on the day he arrived at 3/3, Appellant
entered his barracks room (the door did not lock properly) at approximately
0100. Most of the battalion was at the PTA training exercise. Lance Corporal
Delta had only met Appellant earlier in the day. Appellant told him, “Hey,
wake up. The duty says there’s too many cigarette butts downstairs. Let’s go
police call it.” 27 Lance Corporal Delta interpreted that as an order and followed
Appellant outside. Once outside, Appellant told him, “Skull drag and pick up
all the cigarette butts.” 28 A “skull drag” is a term for low-crawling using only
one arm, causing one’s head to drag along the ground. Appellant forced LCpl
Delta to pick up cigarette butts for about fifty feet on a grassy field. Then he
ran with LCpl Delta around the barracks building “a couple of times.” 29 Appel-
lant then smoked a cigarette while he ordered LCpl Delta to perform various
exercises. This episode left LCpl Delta “confused” but not “angry.” 30
27 R. at 876.
28 R. at 877.
29 R. at 878.
30 R. at 882.
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II. DISCUSSION
A. Standard of Review and the Law
Article 66, UCMJ, requires the service criminal courts of appeal to conduct
a de novo review of the factual sufficiency of all cases it hears. 31 This “awesome,
plenary, de novo power” 32 requires us to weigh all the admitted evidence and
testimony at trial, make “allowances for not having personally observed the
witnesses,” and decide whether we are convinced of the accused’s guilt beyond
a reasonable doubt. 33 In doing so, we take a “fresh” and “impartial look at the
evidence” and apply “neither a presumption of innocence nor a presumption of
guilt.” 34 This does not mean that a conviction must be “free from conflict,” 35 but
it must be proven beyond a reasonable doubt—the highest standard known to
the law. If the evidence admitted at trial leaves us, like a finder-of-fact at trial,
with a “fair and reasonable hypothesis except that of guilt,” we are required to
set aside the conviction. 36
Here, we review the assault convictions for factual sufficiency, but that fac-
tual analysis turns on Appellant’s legal defense of mistake of fact as to the
consent of the junior Marines. An assault consummated by battery is defined
as “bodily harm to another . . . done without legal justification or excuse and
without the lawful consent of the person affected.” 37 And “bodily harm” is de-
fined as “any offensive touching.” 38 “[A]s a general matter, consent can convert
what might otherwise be offensive touching into non-offensive touching.” 39 Un-
der Rule for Court-Martial 916(j)(1), even if an alleged victim did not actually
31 United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003).
32 United States v. Kelly, 77 M.J. 404, 406 (C.M.A. 1990) (quoting United States v.
Cole, 31 M.J. 272 (C.M.A. 1990)).
33 United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
34 Washington, 57 M.J. at 399.
35 United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
36 Benchbook, para. 2-5-12.
37 Manual for Court-Martial, United States (2016 ed.) [MCM (2016)] pt. IV, para.
54.c.(1)(a), (2)(a).
38 MCM (2016) pt. IV, para. 54.c(1)(a).
39 United States v. Johnson, 54 M.J. 67, 69 (C.A.A.F. 2000) (quoting United States
v. Greaves, 40 M.J. 432, 433 (C.M.A. 1994)).
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Opinion of the Court
consent to an offensive touching, an accused cannot be convicted of assault con-
summated by battery if the accused mistakenly believed the alleged victim con-
sented and that belief was “reasonable under all the circumstances.” 40
With respect to the offenses of hazing and aggravated assault, which the
Government could possibly have charged in this case, the “opportunity to raise
a consent defense” 41 would not exist. But with respect to the offenses charged
here, that is, assault consummated by battery by Appellant burning three jun-
ior Marines with cigarettes, the defense of a reasonable mistake of fact is avail-
able and we must consider the facts and apply them.
B. Appellant Mistakenly Believed the Junior Marines Consented
In our prior opinion, we found Appellant had an honest, albeit mistaken,
belief that the three junior Marines consented to being burned. We still hold to
that finding. We note the witnesses provided conflicting and impeached testi-
mony on the question of whether they pulled their own shirts down to allow
Appellant to burn their chests. Private First Class Bravo testified Appellant
pulled his shirt down, but then could not recall if he had previously told the
trial counsel that he pulled his own shirt down, before finally settling on an
answer that either he or Appellant pulled his shirt down. Lance Corporal Echo
testified he pulled his own shirt down, which oddly enough, was contradicted
by LCpl Delta, who testified Appellant pulled LCpl Echo’s shirt down. We also
note none of the junior Marines testified to any physical or verbal resistance
while this was happening, they continued socializing for some time afterwards,
and they did not initiate reporting of these events to anyone. We cannot con-
clude beyond a reasonable doubt that Appellant did not honestly, though ap-
parently mistakenly, believe the three junior Marines consented to being
burned.
C. The Government Did Not Disprove Appellant’s Mistake of Fact De-
fense
In our first analysis, we declined to go into detail about whether it was
reasonable under the circumstances because we incorrectly viewed public pol-
icy as ultimately barring a mistake of fact as to consent defense. The circum-
40 R.C.M. 916(j)(1); See also Greaves, 40 M.J. at 433.
41 Mader II, 81 M.J. at 108.
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stances surrounding consent to an assault are, as a matter of law, not “reason-
able” when such circumstances are a “mutual affray,” 42 where serious bodily
injury occurs, 43 where there is a breach of public order, 44 or when the assault
is committed “under circumstances as to which consent will not be recognized
as a matter of law.” 45
The circumstances here were not a mutual affray and there was no sub-
stantial bodily harm alleged, although in some civilian jurisdictions, such as
in Hawaii, a scar from a cigarette burn could constitute such harm. 46 It could
42 United States v. Wilhelm, 36 M.J. 891, 893 (A.F.C.M.R. 1993). Our sister service
court explained the “mutual combatant’s status is not favored by the law” because both
parties are “wrongdoers.” The Wilhelm court also pointed out, as we did in Mader I,
that consent must be lawful consent to be valid and that an illegal activity, such as a
mutual affray, or, as we thought, an incident of hazing, would vitiate any consent. The
Wilhelm court relied on CAAF’s predecessor court, which in turn quoted the Supreme
Court (United States v. O’Neal, 16 C.M.A. 33, 37, 36 C.M.R. 189, 193 (1966) (quoting
Rowe v. United States, 164 U.S. 546, 556 (1896))). A mutual affray will not qualify for
lawful consent, but as CAAF indicated in Mader II, the participants or victims of a
hazing action can possibly give lawful consent when it is charged as an assault, despite
consent not being a lawful defense to a hazing charge.
43 United States v. Atchak, 75 M.J. 193, 195 (C.A.A.F. 2016) (“An individual cannot
consent to aggravated assault.”) (citing United States v. Bygrave, 46 M.J. 491, 494
(1997) (holding that Congress did not create exceptions for consent to acts likely to
produce grievous bodily harm)).
44 In United States v. Holmes, 24 C.M.R. 762 (A.F.B.R. 1957), an English woman
had the habit of desiring physical beatings before sexual intercourse. On one occasion,
appellant chased her from her home into the street around midnight. When he caught
her and tried to return her to the home, she resisted and he knocked her to the ground
and kicked her face with his bare feet. The commotion attracted “20 or 30 neighbors”
who responded and gathered at the scene. Holmes, 24 C.M.R. at 763. Citing Wharton’s
Criminal Law and The Queen v. Coney, 8 QBD 534 (1882) (finding bare knuckle boxing
unlawful), the Air Force Board of Review held that her consent was invalid because
the “fight had the character of illegality” and that “an assault being a breach of the
peace, and unlawful, the consent of the person struck is immaterial.” Holmes, 24
C.M.R. at 764.
45 United States v. Boyett, No. 98-00800, 1999 CCA LEXIS 66 (N-M. Ct. Crim. App.
1999) (unpublished) (citing United States v. Bygrave, 46 M.J. 491 (C.A.A.F. 1997);
United States v. Brantner, 28 M.J. 941 (N.M.C.M.R. 1989); United States v. Dumford,
28 M.J. 836 (A.F.C.M.R. 1989)).
46See Haw. Rev. Stat. Ann. §§ 707–711(1)(a) and (d); State v. Wilson, No. 28478,
2009 Haw. App. LEXIS 4 (Haw. Ct. App. Jan. 7, 2009) (unpublished). The record is
absent to whether this portion of MCB Hawaii had shared jurisdiction with the state
of Hawaii. We also discern that the difference between this case and United States v.
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Opinion of the Court
be argued that a “breach of public order” occurs whenever a crime has been
committed, and here, there was arguably a hazing incident that occurred in
violation of the UCMJ. But we are unwilling to make such a leap that un-
charged misconduct might provide the basis to bar Appellant’s use of the mis-
take of fact defense.
We are also unwilling to deny the possibility of Appellant’s mistake of fact
defense solely because he was a sergeant and his alleged victims were junior
Marines. Though the Government argues precisely this—that because Appel-
lant was the “senior Marine” that his mistaken belief was unreasonable. 47 This
would essentially be converting a potential hazing fact-pattern—which does
not have the benefit of the mistake of fact consent defense—into an assault
conviction. While military law is always on guard for “subtle pressure” due to
differences in rank, we find none here that would undermine the reasonable-
ness of Appellant’s belief in the consent of the junior Marines. 48 He was not
overbearing, giving commands, or yelling. 49 Even when Appellant suggested to
PFC Bravo that he remain in his room and sleep due to his intoxication, the
junior Marine ignored that suggestion and rejoined the group. When PFC
Bravo was standing at parade rest to get burned by Appellant’s cigarette, he
testified that he did so, not because he was compelled, but to try to appear more
sober. We also do not discern that Appellant inappropriately used his rank.
The cases the Government relies on are far from the one in front of us. In
United States v. Bradley 50 and in United States v. McFarlin, 51 the circum-
stances were dramatically different concerning whether it was reasonable to
mistakenly believe consent was given. In Bradley, an Army drill sergeant came
Arab, 55 M.J. 508 (Army Ct. Crim. App. 2001)–where the appellant was convicted of
assault for burning his wife with a cigarette with her consent as part of sexual inter-
course—is that the victim in Arab appeared to be subjected to extreme pain and did
not actually consent.
47 Appellee’s Br. at 13.
48 United States v. Norris, 55 M.J. 209, 215 (C.A.A.F. 2001). We believe it appro-
priate to consider whether the rank disparity contributed to the apparent consent of
the junior Marines.
49 See United States v. Haverty, 76 M.J. 199, 202 (C.A.A.F. 2017) (sergeant’s use of
“raised commanding voice” to a specialist prompted her to drink alcohol in hazing in-
cident).
50 United States v. Bradley, 28 M.J. 197 (C.M.A. 1989).
51 United States v. McFarlin, 19 M.J. 790 (A.C.M.R. 1985). We note this case is
persuasive authority only.
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Opinion of the Court
to the trailer of the wife of one of his trainees, whom had just been punished
at an Article 15, UCMJ, proceeding. The drill sergeant threatened the wife
with further punishment of her husband, including three years of imprison-
ment unless she complied with his demand to engage in sexual activity. The
drill sergeant also used a “loud demanding voice” and “employ[ed] language
indicating his power and control.” 52 He also repeatedly ignored the victim’s
“pleaful entreaties to desist in his sexual demands.” 53 The Government fares
no better with McFarlin, a case where an Army staff sergeant, who was the
direct supervisor of the victim—a private in a training command—committed
an indecent assault when he presented his penis to her for oral sex and she
complied. The Army court found that the consent defense was not “reasonably
raised” in that case and her passive acquiescence was “reasonably attributable
to appellant’s superior rank and position.” 54 The nature of whatever Appel-
lant’s rank, position, and authority over the junior Marines is a far cry from
the obvious and apparent authority demonstrated in Bradley and McFarlin.
The record persuades us that the Government failed to prove beyond a rea-
sonable doubt, both that Appellant was not under a mistaken belief that the
junior Marines each consented to being burned, and that at the time of the
offenses Appellant’s mistake was unreasonable. The junior Marines testified
under oath that they never consented to being burned. But the totality of the
circumstances of the evening suggest, at least sufficiently enough to raise rea-
sonable doubt as to his guilt, that Appellant’s mistaken belief was a reasonable
one. The evening’s overall informality, the junior Marines’ casual drinking of
alcohol, their pulling down their shirts and presenting themselves, the nature
of the “bonding ritual” similar to the one Appellant himself had once partici-
pated in, and the total lack of contemporaneous evidence the junior Marines
objected, all undermine the Government’s argument that Appellant’s mistake
of fact was unreasonable under the circumstances.
The question is also whether Appellant was negligent in failing to discover
the true facts concerning the junior Marines’ consent. Negligence is the ab-
sence of due care. Due care is what a reasonably careful person would do under
the circumstances. 55 Here, the underlying nature of the act—what appears to
52 Bradley, 28 M.J. at 200.
53 Id.
54 McFarlin, 19 M.J. at 794.
55 Greaves, 40 M.J. at 437 n.5.
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United States v. Mader, NMCCA No. 201800276
Opinion of the Court
be an unlawful hazing ritual—is what complicates the issue. If the junior Ma-
rines were willingly participating in a hazing ritual, they could also be subject
to prosecution. 56 From the record, it appears that any additional actions Ap-
pellant took to ascertain the true intent of the junior Marines to participate in
this hazing ritual would have been met with a confirmation of their apparent
desire to consent.
We also do not confuse an accused’s negligence in discovering the true facts
of consent with negligence in performing the underlying action. Otherwise, the
“reasonableness” prong of mistake of fact defense would generally cease to ex-
ist as all offensive touchings are presumptively unlawful. Just because Appel-
lant’s act of burning the junior Marines with a cigarette appeared to be an
unlawful hazing ritual, and not something a reasonably careful person would
do in the first place, does not mean Appellant was not reasonably careful in
ascertaining the true facts of the junior Marines’ consent to the act. Otherwise
we are essentially substituting a hazing conviction where Appellant’s assault
conviction failed. As CAAF stated in Mader II, “It is as much a violation of due
process to send an accused to prison following conviction of a charge on which
he was never tried as it would be to convict him upon a charge that was never
made.” 57 We find the Government failed to prove beyond a reasonable doubt
that Appellant’s mistake of fact was neither honest nor reasonable under the
circumstances. Thus, the evidence of his guilt of assault consummated by bat-
tery for burning the junior Marines with cigarettes is factually insufficient.
D. Sentence Reassessment
In our prior opinion, we set aside and dismissed with prejudice Specifica-
tion 1 of Charge I for factual insufficiency. We also affirmed Specification 2 of
Charge I and Specification 3 of Charge II. That portion of our opinion was af-
firmed by CAAF. We have now set aside and dismissed Specifications 1, 2, and
4 of Charge II. Appellant’s only remaining convictions are those previously af-
firmed and arising from Specification 2, Charge I for violating Article 92,
UCMJ, when Appellant called PFC Charlie a derogatory racial name, and from
Specification 3 of Charge II for violating Article 128, UCMJ, when Appellant
punched PFC Charlie in the stomach,
56 Pros. Ex. 1, Marine Corps Order 1700.28B, Hazing, para. 3.b., (May 20, 2013)
states that “No Marine . . . shall engage in hazing or consent to being the subject of
hazing.”
57 Mader II, 81 M.J. at 108 (quoting Cole v. Arkansas, 333 U.S. 196, 201 (1948)).
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Opinion of the Court
We must now consider whether we can reassess the sentence pursuant to
United States v. Winckelmann. 58 We consider the following factors:
(1) [Whether there have been] [d]ramatic changes in the pen-
alty landscape and exposure[;]
(2) Whether an appellant chose sentencing by members or a
military judge alone[;] . . .
(3) Whether the nature of the remaining offenses capture[s]
the gravamen of criminal conduct included within the original
offenses and, in related manner, whether significant or aggra-
vating circumstances addressed at the court-martial remain ad-
missible and relevant to the remaining offenses[; and]
(4) Whether the remaining offenses are of the type that
judges of the courts of criminal appeals should have the experi-
ence and familiarity with to reliably determine what sentence
would have been imposed at trial. 59
While there is some change in the sentencing landscape, it is not so dra-
matic that it warrants a new sentencing hearing. The maximum confinement
Appellant faced for the three Article 128 specifications for burning the junior
Marines plus the remaining specifications involving PFC Charlie was 48
months. It is now 30 months. Though the gravamen of Appellant’s misconduct
was the burning of the junior Marines with a cigarette—despite each of these
actions only exposing him to six months of confinement for each act as com-
pared to the two years of confinement for calling PFC Charlie a derogatory
name—we are persuaded that the remaining specifications are of such a na-
ture as to be readily familiar to the Court and we can reliably determine what
would have been imposed at trial. We note that the military judge informed
the members that Appellant had spent 178 days in pretrial confinement and
advised them that he would be given day-for-day credit against any adjudged
confinement.
Appellant’s actions toward PFC Charlie were clearly unacceptable and un-
worthy of the trust and confidence of a noncommissioned officer of Marines,
especially toward a junior Marine. Taking into consideration all of the evidence
presented by the parties during pre-sentencing, we determine Appellant’s re-
assessed, and legally appropriate, sentence is reduction to E-3.
58 United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013).
59 Id. at 15–16 (citations omitted).
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Opinion of the Court
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we
have determined that the findings for Specifications 1, 2, and 4 of Charge II
are factually insufficient and are DISMISSED WITH PREJUDICE. The re-
maining, and previously affirmed, findings of guilty for Specification 2 of
Charge I and Specification 3 of Charge II are correct in law and fact and, with
regard to them, no error materially prejudicial to Appellant’s substantial rights
occurred. 60 The reassessed sentence is also correct in law and fact and without
error materially prejudicial to Appellant’s substantial rights.
The remaining findings and sentence, as reassessed, are AFFIRMED.
Chief Judge MONAHAN and Judge DEERWESTER concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
60 Articles 59 & 66, UCMJ.
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