United States v. JETER-III ( 2021 )

Before
STEPHENS, HOUTZ, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Willie C. JETER
Lieutenant Junior Grade (O-2), U.S. Navy
Appellant
No. 201700248
Argued: 28 July 2021—Decided: 20 October 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
following remand from
the United States Court of Appeals for the Armed Forces
Military Judges:
Heather Partridge (arraignment)
Jason L. Jones (trial)
Sentence adjudged 14 April 2017 by a general court-martial convened
at Naval Station Norfolk, Virginia, consisting of officer members.
Sentence approved by the convening authority: confinement for 20
years and a dismissal.
For Appellant:
Major Anthony M. Grzincic, USMC (argued)
Lieutenant Clifton E. Morgan III, JAGC, USN (on brief)
United States v. Jeter, NMCCA No. 201700248
Opinion of the Court
For Appellee:
Lieutenant Catherine M. Crochetiere, JAGC, USN (argued)
Lieutenant John L. Flynn, JAGC, USN (on brief)
Lieutenant Gregory A. Rustico, JAGC, USN (on brief)
Judge DEERWESTER delivered the opinion of the Court, in which
Senior Judge STEPHENS and Judge HOUTZ joined.
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
DEERWESTER, Judge:
A general court-martial consisting of officer members convicted Appellant,
contrary to his pleas, of violating the Navy’s sexual harassment instruction,
drunken operation of a vehicle, sexually assaulting two different women,
extortion, burglary, conduct unbecoming an officer, communicating a threat,
and unlawful entry, in violation of Articles 92, 111, 120, 127, 129, 133, and
134, Uniform Code of Military Justice [UCMJ]. 1 .
This case is before us for a second time. This Court issued its opinion in
Jeter I, on 3 January 2019, where we affirmed the findings and sentence after
addressing Appellant’s original eleven assignments of error [AOEs]: 2
I. Whether removal of minority and female members
from the court-martial panel violated Appellant’s
Equal Protection and Due Process rights;
II. Whether the Convening Authority committed actual
or apparent unlawful command influence by stacking
the members entirely with white men;
1 10 U.S.C. §§ 892, 911, 920, 927, 929, 933, and 934 (2012). After announcement
of the findings, the military judge conditionally dismissed the sexual harassment
specification, one of two specifications of drunken operation of a vehicle, one of three
specifications of sexual assault, and one of two specifications of unlawful entry.
2 United States v. Jeter, 78 M.J. 754, 761–62 (N-M. Ct. Crim. App. 2019) [Jeter I].
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III. Whether the military judge erred in admitting evi-
dence and instructing members on the Appellant’s
motive and intent;
IV. Whether Appellant’s conviction for sexual assault by
bodily harm is legally and factually sufficient;
V. Whether Appellant’s conviction for sexually assault-
ing his victim while she was asleep is legally and fac-
tually sufficient;
VI. Whether Appellant’s conviction for sexual assault by
threatening or placing his victim in fear is legally
and factually sufficient;
VII. Whether Appellant’s conviction for drunken operation
of a vehicle in violation of the Virginia Code is legally
and factually insufficient; 3
VIII. Whether the military judge erred by denying Appel-
lant’s request for a mistake of fact instruction;
IX. Whether Appellant’s trial defense counsel was ineffec-
tive;
X. Whether the military judge abused his discretion
when he denied Appellant’s motion to challenge a
member for cause;
XI. Whether the military judge abused his discretion in
denying Appellant’s request for a new Article 32,
UCMJ, proceeding.
After this Court issued its opinion, Appellant petitioned the Court of
Appeals for the Armed Forces [CAAF]. CAAF issued a summary disposition4
vacating this Court’s opinion and remanding for further consideration in light
3 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The
military judge conditionally dismissed this specification. See R. at 958. AOEs IX, X,
and XI were also raised pursuant to Grostefon.
4 United States v. Jeter, 80 M.J. 200 (C.A.A.F. 2020) [Jeter II].
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of United States v. Bess. 5 In Bess, the issue before CAAF was whether the
convening authority, who was the same convening authority in Appellant’s
case, violated due process by stacking the members’ panel with white
members when the accused was black. Judge Ryan, joined by Chief Judge
Stucky, concluded that the protections found in Batson v. Kentucky 6 do not
extend to the selection of members by the convening authority. 7 Similar to
this Court’s now-vacated opinion in Jeter I, these judges noted that there was
no precedent to extend the Batson protections to a convening authority’s
member selection, which is already covered by the requirements of Article 25,
UCMJ. 8 Upon re-docketing with this Court, additional briefing and oral
argument were provided by the parties on the issue of Batson’s applicability
to member selection by the convening authority.
We find that the convening authority did not violate Appellant’s equal
protection or due process rights, and affirm on this AOE. We further adopt
our holdings on AOEs II-XI, consistent with this Court’s prior published
opinion in Jeter I and once again conclude the findings and sentence are
correct in law and fact and that no error materially prejudiced Appellant’s
substantial rights.
I. BACKGROUND
The facts of Appellant’s assignments of error sent back to this Court in
light of Bess stem from the 4 January 2017 General Court-Martial Convening
Order [GCMCO] 1-17, whereby the convening authority, Rear Admiral (O-8)
[RADM] JS, Commander, Navy Region Mid-Atlantic, convened a general
court-martial composed of ten officer members. Based on evidence attached to
the record on appeal, which was not presented to the trial court, two of the
ten members of this original court-martial panel were black.
5 United States v. Bess, 80 M.J. 1 (C.A.A.F. 2020).
6 476 U.S. 79, 96–97 (1986) (holding that if an accused member of a cognizable
racial group can establish a prima facie case of purposeful discrimination in jury
selection based on the prosecution’s use of peremptory challenges for jurors of the
same racial group, the government must provide a race-neutral explanation for
challenging those jurors).
7 Bess, 80 M.J. at 8. The other three judges in Bess either did not reach or disa-
greed with this legal conclusion. See id. at 15–23.
8 Id. at 8–9.
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On 6 April 2017, four days prior to the beginning of Appellant’s trial, Captain
(O-6) [CAPT] MM, who was serving as the Acting Commander, Navy Region
Mid-Atlantic, and convening authority, amended GCMCO 1-17, and issued
GCMCO 1B-17. He removed the ten members selected by RADM JS, and
appointed eight new members. Based on the court-martial members’
questionnaires, seven of these members identified themselves as white men. 9
When RADM JS returned as the convening authority, the day before trial
was set to begin, he again amended the convening order by adding an
additional member for a total of nine members. Based on the military judge’s
factual finding at trial, all nine of these members of the venire were white.
Prior to voir dire, Appellant’s trial defense counsel [TDC] challenged the
makeup of the members panel. He argued that a lack of minority members
demonstrated a “systematic exclusion of members based on race and
gender.” 10 Having been presented with no evidence regarding the racial
composition of the original panel, the military judge concluded that there was
no evidence of a systematic, purposeful exclusion of any minority members by
the convening authority. During a later Article 39(a), UCMJ, session
conducted during a recess in individual voir dire, TDC renewed his motion,
arguing that the convening authority had engaged in a pattern of empaneling
only white male members in courts-martial for accused who were black. In
support of his motion, TDC noted that the members’ questionnaires asked the
members their race and gender. The TDC also offered a portion of a trial
transcript from a previous court-martial—purportedly convened by the same
convening authority—wherein the trial defense counsel in the other courts-
martial complained that there was no racial diversity—meaning no black
members—on the panel. The military judge maintained his previous ruling,
concluding, “I don’t see any unlawful Article 25[, UCMJ] issue here . . . there
is no evidence [the convening authority is] not using the Article 25[, UCMJ]
criteria. . . . I still don’t see the systematic exclusion of [eligible members
based on race or gender].” 11
The members returned a finding of guilty on multiple charges and specifi-
cations and sentenced Appellant to 20 years’ confinement and a dismissal. In
Appellant’s first appeal before this Court, he submitted an affidavit from the
9 Of the nine court-martial member questionnaires, only seven listed race on
them. The final questionnaire did not have a race question on it. It is unclear from
the record why some questionnaires asked about race, while others did not.
10 R. at 171.
11 Id. at 277.
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Executive Officer [XO], Defense Service Office Southeast. In his affidavit, the
XO asserted that RADM JS convened two other courts-martial besides
Appellant’s, where the accused was a black man and was convicted by panels
made up of only white members. With the affidavit, the XO also enclosed a
letter he had sent to RADM JS complaining about the lack of minority
representation on members’ panels for black accused. Thereafter, according
to the XO’s affidavit, RADM JS twice amended an existing convening order in
the case of a black Naval officer represented by the XO, in order to include
minority members. According to the affidavit, that officer accused was
eventually acquitted.
CAAF remanded this case to this Court to consider Appellant’s arguments
concerning members’ selection in light of its holding in Bess. 12 To that end,
we found the evidence presented to this Court sufficient to question the
presumption of regularity of the convening authorities’ member selection 13
and ordered sworn declarations from RADM JS, CAPT MM, and CAPT AA,
the staff judge advocate [SJA] who advised them. Appellant asserts that, in
light of Bess, the convening authority’s selection of panel members violated
his right to equal protection under the Fifth Amendment. 14
II. DISCUSSION
A. Members Selection Due Process
In his initial Appeal, Appellant argued first that the convening authority
removed all minority representation from his court-martial, in violation of his
Due Process and Equal Protection rights. 15 In our analysis we discussed
Batson’s avenue for a criminal defendant who is a member of a “cognizable
racial group” to establish a prima facie case of purposeful discrimination in
the selection of a jury based solely on the prosecution’s use of peremptory
challenges for jurors who are part of the same racial group. 16 Ultimately, we
cited our unpublished decision in Bess in concluding that Batson’s per se rule
12 80 M.J. 1.
13 See Bess, 80 M.J. at 10 (citations omitted).
14 U.S. Const. amend V.
15 See Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the equal protection
clause forbids a prosecutor to peremptorily challenge potential jurors based solely on
their race).
16 Id. at 96.
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did not extend to a convening authority’s selection of members. 17 Further,
upon de novo review, we found Appellant failed to make a showing of
systematic exclusion. We now further examine this issue in light of CAAF’s
decision in Bess.
1. Court-Martial Referral Process and Member Selection Procedure
The process of convening a court-martial is governed by the UCMJ and
Rules for Courts-Martial [R.C.M.] and involves “preferring” charges,
forwarding the charges, and “referring” the charges to a court-martial. The
preferral process consists of the “accuser,” signing an oath on the charge
sheet that he or she has personal knowledge of or has investigated the
allegations and that they are true to the best of his or her knowledge and
belief. 18 The accuser then forwards the charges to the summary court-martial
convening authority, that is, the commander who has summary court-martial
jurisdiction over the accused.
The summary court-martial convening authority may either dismiss the
charges, refer the charges to a summary court-martial, or forward the
charges to the special court-martial convening authority, a superior
commander who has special court-martial jurisdiction over the accused. 19 The
special court-martial convening authority may, in turn, dismiss the charges,
refer the charges to either a summary or special court-martial, or, if the
charges are of a serious nature, direct an Article 32, UCMJ, preliminary
hearing to determine whether the charges should be forwarded to the general
court-martial convening authority for disposition. 20
When a convening authority refers charges to a special or general court-
martial, he or she issues a convening order which creates a panel of members
to whom the charges can be referred (also referred to as the “venire”). 21 The
venire may be composed of officers specially selected by the convening
authority for the specific case or it may be a panel of officers on a so-called
“standing order.” A standing order or “standing panel” consists of members
17 United States v. Bess, No. 201300311, 2018 CCA LEXIS 476 (N-M. Ct. Crim.
App. Oct. 4, 2018) (unpublished).
18 R.C.M. 307(b)
19 R.C.M. 403.
20 R.C.M. 404.
21 R.C.M. 501. The exception would be when a case is referred to a special court-
martial consisting of a military judge alone under Article 16(c)(2)(A), UCMJ.
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selected by the convening authority to potentially serve on any or all courts-
martial convened during a period of time and to which the convening
authority may ultimately refer many different cases.
The date of the trial is determined by the military judge, who is detailed
to the case after the convening authority refers the case to court-martial.
Depending on a number of factors, including the need for one or more pretrial
hearings, the military judge may not decide upon the trial date for some time.
When the judge does eventually set the trial date, the judge takes into
account the judge’s availability as well as the availability of the counsel for
both sides—including any civilian counsel hired by the accused—and of the
lay and any expert witnesses. In the typical case, the judge sets the trial for a
date that is many weeks, if not months, after the convening authority
originally selected the court members. It is quite common that several, and
sometimes all, of the original members are not available for what eventually
becomes the trial date. In such cases, the convening authority routinely
amends the convening order to remove the unavailable members and to select
replacements.
2. Batson’s Applicability to Member Selection
As we found in our initial opinion, 22 we again find that the mere absence
of minority members within the venire selected by the convening authority,
unlike a prosecutor’s use of a peremptory challenge against a juror of the
same racial group as the accused, does not establish a prima facie case of
purposeful discrimination, which then shifts the burden to the government to
provide a race-neutral explanation for the absence of such minority members.
We have found no precedent to allow for the proposition that the mere
selection of an all-white panel would require the convening authority to
provide a race-neutral reason for the selection. Unlike the mechanism
utilized in preemptory challenges in which a prosecutor specifically excludes
a member of the same cognizable racial group, member selection is generally
a process of inclusion, based on the statutory requirements found in Article
25, UCMJ. As such, we decline to adopt Appellant’s position at oral argument
that detailing an all-white panel is alone enough to establish a prima facie
case of exclusion of black members.
22 Jeter I, 78 M.J. at 765–66.
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3. Systematic Exclusion of Cognizable Racial Group
As we discussed in our original opinion, 23 our analysis does not end with
finding that Batson’s per se rule does not apply to the member selection
process. We also review whether, through submission of other evidence, a
prima facie case of systematic exclusion of minority members has been made.
In addition, we review whether evidence presented establishes purposeful
exclusion of minority members in Appellant’s case, even if not over a period of
time. Here, evidence submitted in the form of an affidavit from the XO of the
Defense Service Office supports that similar all-white panels were selected in
three other cases with a black accused. Further, Appellant also submitted
evidence to this Court that the original standing court-martial convening
order contained two black members, such that the effect of the subsequent
amending convening orders replacing the original panel of ten members with
nine all-white members at least has the appearance of excluding members of
Appellant’s cognizable racial group from his court-martial panel.
a. Affidavit from the Executive Officer of the Defense Service Office
As we discussed in our initial opinion, and as CAAF outlined in Bess, the
affidavit from the XO does not itself establish a prima facie case of systematic
exclusion of black members in cases in which there is a black accused. While
the affidavit may appear to show a pattern of these cases over a period of
time, it does not alone show exclusion, let alone systematic exclusion of black
members. While the affidavit notes four cases (including Appellant’s) in
which only white members were selected for a black accused’s court martial
panel, it does not include any information as to the exclusion, improper or
not, of black members. There is no evidence that the convening authority who
selected these members knew the race of the members selected—let alone
purposefully chose not to select members of the particular accused’s
cognizable racial group—or even knew the race of the accused. Further, the
officers serving as the convening authority who replaced the standing panel
with new members in Appellant’s case were not the same officer mentioned in
the three other cases. As such, while the XO’s affidavit might be used by the
trial defense counsel to request additional member selection discovery to
evaluate whether to make a motion for improper member selection, it is not
enough to establish a prima facie case of systematic exclusion of black
members in Appellant’s case.
23 Id. at 766.
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b. Evidence of Black Members on the Standing Order
More problematic, however, is evidence submitted to this Court pursuant
to its fact-finding authority supporting that two members on the original
standing order were black. If the race of the members on the standing order
were in fact known to the convening authority, and the convening authority
specifically excluded such minority representation on the venire through the
amended convening orders, it would tend to show a purposeful, albeit not
systematic, exclusion of members of the accused’s cognizable racial group—if ,
in addition to knowing the race of the members, the convening authority also
knew the race of the accused. While convening authorities are presumed to
act in accordance with Articles 25 and 37, UCMJ, 24 this presumption, like
any other, can be called into question under the totality of the circumstances.
In this case, because there appeared to be at least some evidence of actual
exclusion (even if not purposeful) of members of the accused’s own racial
group, this Court ordered affidavits from the convening authority, acting
convening authority, and SJA to provide their rationale for selection of the
members in Appellant’s case. 25 In the affidavits filed in response to our
Order, all three individuals involved in the member selection process state
they were not aware of the race of the members detailed in either the
standing convening order or the amended convening orders. Further, they
describe the process utilized during their time at Navy Region Mid-Atlantic.
This consisted of an SJA review of Article 25 qualified members, which was
presented to the convening authority for selection of the venire. According to
the affidavit filed by the SJA, the race of neither the accused nor the
members was ever discussed, either for Appellant’s case or any other case
involving these three individuals during their tenure at Navy Region Mid-
Atlantic. 26
Accordingly, we conclude based on the evidence in the record that the
selection process utilized in Appellant’s case was proper. While there may
have been a need to switch out the members on the standing order to allow
for nominating and seating new members, this is common practice especially
24 See Bess, 80 M.J. at 10.
25 We conclude the trial judge was correct in finding there was no evidence of
such exclusion, because the evidence regarding the racial composition of the original
standing panel was not presented to him for comparison against the venire at trial.
26 The SJA did mention one time in which there was a challenge under Batson v.
Kentucky in a separate case, in which he did discuss the merits of the challenge with
the convening authority.
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in large jurisdictions such as Navy Region Mid-Atlantic. As such, we find
there was neither purposeful nor systematic exclusion of members of
Appellant’s racial group.
B. Unlawful Command Influence
Appellant next argues the convening authority exerted actual or apparent
unlawful command influence [UCI] by empaneling only white, male members
to his court-martial. We examined United States v. Lewis, where CAAF
discussed that five women detailed to a court-martial was an anomaly,
specifically finding that there was no evidence of improper selection
criteria. 27 We have also considered United States v. Riesbeck, in which five
women, four of whom were victim advocates, were detailed to the appellant’s
panel and in which the case was “replete with evidence . . . of intentional
choices by the first three convening authorities . . .” 28 Turning to this case,
only although seven of the nine members’ questionnaires contained racial or
ethnic responses, there was no evidence the convening authority knew of the
race or ethnicity of the other two members. Appellant’s case is more
analogous to Lewis, with no evidence of improper selection criteria. Further,
there is no evidence of any of the improper selection criteria as in Riesbeck.
Accordingly, we find Appellant has not met his burden to establish some
evidence of potential UCI.
We also considered the case for apparent UCI, asking whether “an objec-
tive, disinterested observer, fully informed of all the facts and circumstances,
would harbor a significant doubt about the fairness of the proceeding.” 29 We
find that there are insufficient facts to lead a reasonable person to harbor
doubt of the fairness of the proceeding, and that Appellant has not presented
evidence the convening authority selected members using criteria other than
those in Article 25, UCMJ.
C. Additional Assignments of Error
1. Military Rule of Evidence 404(b)
Appellant further argues the military judge erred in instructing the
members they could use evidence from the charged allegations against
victims GCM, MH, and AM to prove Appellant’s motive and intent of other
27 United States v. Lewis, 46 M.J. 338, 342 (C.A.A.F. 1997).
28 United States v. Riesbeck, 77 M.J. 154, 164 (C.A.A.F. 2018).
29 United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013).
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charged misconduct under Military Rule of Evidence [Mil. R. Evid.] 404(b). In
reviewing the applicability of United States v. Hills, we conclude that it did
not apply to this case. 30 We fully adopt our analysis in Jeter I 31 that Hills
deals with propensity evidence and that evidence admitted under Mil. R.
Evid. 404(b) is not propensity evidence as it is “not admissible to prove the
character of a person in order to show action in conformity therewith.” 32
Next, in reviewing evidence of motive and intent, we agree with the
military judge’s application of the Reynolds test, finding that a reasonable
factfinder could, by a preponderance of the evidence, find that Appellant
engaged in or attempted the specific acts. 33 We also find the military judge
did not abuse his discretion in admitting evidence of Appellant’s intent.
Finally, in examining the third prong, we conclude the military judge did
properly apply the Mil. R. Evid. 403 balancing test. Ultimately, the military
judge did not abuse his discretion in admitting evidence of charged miscon-
duct to prove motive and intent regarding other charged misconduct.
Further, even if there was error, it is harmless error.
2. Legal and Factual Sufficiency
Appellant also contends his convictions for sexual assault of AM and GCM
are factually and legally insufficient. In reviewing the evidence supporting
Appellant’s conviction for sexually assaulting AM, we reviewed Appellant’s
allegations of gaps in her memory, and conclude that in considering all the
evidence in a light most favorable to the prosecution, a rational factfinder
could have found that she did not consent.
Concerning Appellant’s conviction for sexually assaulting GCM, he argues
that the Government failed to prove that he threatened her, a necessary
element for that specification as charged. In reviewing Appellant’s state-
ments, we disagree, and find that a reasonable person would have been in
fear of being subjected to Appellant’s implied actions—i.e., either engage in
sexual relations with him or be held accountable for misconduct. Appellant
argues that reporting misconduct is not a “wrongful action” as required by
statute, but was instead a normal part of his duties. However, we fully adopt
30 United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).
31 Jeter I, 78 M.J. at 769–70.
32 Mil. R. Evid. 404(b) (2012).
33 United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989).
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our analysis in Jeter I 34 that the quid pro quo nature of his statement
transformed the statement into wrongful conduct. Further, Article 120(g)(7)
specifies threatening or placing that other person in fear of the threat “to
accuse any person of a crime.” We therefore find a reasonable trier of fact
could have found all the essential elements beyond a reasonable doubt.
3. Mistake of Fact Instruction
Appellant further claims the military judge erred in denying his request
for a mistake of fact as to a consent instruction. However, in reviewing all the
evidence admitted during trial, we adopt our analysis in Jeter I 35 and find
that no evidence was presented to justify a mistake of fact instruction.
4. Ineffective Assistance of Counsel
Appellant next claims that his trial defense counsel [TDC] was ineffective,
insofar that he should have requested the bridge deck log to demonstrate
Appellant was on watch when GCM claimed he assaulted her. Further, he
alleges his TDC should have presented MH’s 911 call, describing the intruder
wearing a purple or orange shirt, when Appellant was arrested wearing a
gray shirt. In our review applying the test for ineffective assistance of counsel
under Strickland v. Washington test, we once again adopt our analysis in
Jeter I 36 and do not find the TDC deficient. 37 Instead, we find he made
reasonable tactical decisions.
5. Challenges for Cause
Finally, Appellant challenges one of the members, Lieutenant [LT] B, for
actual and implied bias. He argues LT B knew one of the witnesses, thought
he had a poor work ethic, served as the legal officer during the witness’
administrative separation board, and served as recorder at an unrelated
administrative separation board for sexual assault. The military judge denied
the challenge for cause at trial. As we did in Jeter I, 38 we reviewed for both
actual and implied bias. LT B stated he had little experience as a legal officer
and did not interact with the witness closely. The military judge’s ruling on
34 Jeter I, 78 M.J. at 776.
35 Id. at 777–78.
36 Id. at 778–79.
37 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
38 Jeter I, 78 M.J. at 779–80.
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the record was thorough and noted that knowing a witness is not uncommon
in courts-martial. Therefore, we find no actual bias, concurring with the
military judge‘s findings at trial. Further, in applying United States v.
Woods, 39 and in review of the totality of the circumstances, we conclude that
the presence of the member would not cause the public to think the accused
did not receive a fair and impartial panel of members, and would not injure
the public’s perception of the military justice system.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 40
The findings and sentence are AFFIRMED.
Senior Judge STEPHENS and Judge HOUTZ concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
39 United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015).
40 Articles 59 & 66, UCMJ.
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