United States v. Maymi

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40332
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UNITED STATES
Appellee
v.
S’hun R. MAYMI
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 5 October 2023
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Military Judge: Lance R. Smith.
Sentence: Sentence adjudged 21 April 2022 by GCM convened at Royal
Air Force Lakenheath, United Kingdom. Sentence entered by military
judge on 9 May 2022: Dishonorable discharge, confinement for 15
months, forfeiture of all pay and allowances, and reduction to E -1.
For Appellant: Major Spencer R. Nelson, USAF; Major Eshawn R. Rawl-
ley, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Captain
Olivia B. Hoff, USAF; Captain Tyler L. Washburn, USAF; Mary Ellen
Payne, Esquire.
Before JOHNSON, CADOTTE, and MASON, Appellate Military Judges.
Judge MASON delivered the opinion of the court, in which Chief Judge
JOHNSON and Senior Judge CADOTTE joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Maymi, No. ACM 40332
MASON, Judge:
A military judge sitting as a general court-martial convicted Appellant, con-
trary to his pleas, of one charge with one specification of sexual assault and
one charge with one specification of unlawful entry, in violation of Articles 120
and 129, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 929.1,2
The military judge sentenced Appellant to a dishonorable discharge, confine-
ment for 15 months, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority took no action on the findings; he de-
ferred the reduction in grade until the date of his action and waived all auto-
matic forfeitures for a period of six months for the benefit of Appellant’s wife
and child.
Appellant’s counsel submitted this case for review on its merits. Appellant
personally raises five issues: (1) whether the findings are legally and factually
sufficient; (2) whether the Third Air Force Staff Judge Advocate committed
unlawful command influence; (3) whether trial defense counsel are allowed to
argue sex offender registration as a mitigating factor for consideration in sen-
tencing; (4) whether the sentence adjudged by the court-martial was unduly
severe; and (5) whether the “Firearm Prohibition Triggered Under 18 U.S.C.
§ 922” note on the staff judge advocate’s indorsement to the entry of judgment
is constitutional and whether this court can decide that question.3 We have
carefully considered issue (5). As recognized in United States v. Lepore, 81 M.J.
759, 763 (A.F. Ct. Crim. App. 2021) (en banc), this court lacks authority to
direct modification of the 18 U.S.C. § 922 prohibition noted on the staff judge
advocate’s indorsement.
We find no error materially prejudicial to Appellant’s substantial rights
and affirm the findings and sentence.
I. BACKGROUND
In November 2020, AT was stationed at Royal Air Force (RAF) Mildenhall.
AT had friends at RAF Mildenhall and at RAF Lakenheath. One of AT’s friends
from RAF Lakenheath was AR. On 26 November 2020, AR hosted a
1 Unless otherwise noted, all references in this opinion to the UCMJ, Military Rules of
Evidence, and Rules for Courts-Martial are to the Manual for Courts-Martial, United
States (2019 ed.).
2 Appellant was charged with burglary. He was acquitted of burglary but convicted of
the lesser-included offense of unlawful entry.
3 Appellant raises all these issues pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982). The language of the issues raised have been paraphrased and the issues
reordered.
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United States v. Maymi, No. ACM 40332
“Friendsgiving” dinner in her dorm room. Several Airmen attended the dinner,
including Appellant.
AT arrived for the dinner later in the evening. Upon her arrival, she saw
people sitting around, eating, drinking, listening to music, and socializing. Af-
ter dinner, the group played different games, including drinking games. At
some point, one of the attendees invited Appellant to join the group at the
party. AT had never met Appellant before this evening.
Later in the evening, the dinner wound down and people began to leave.
AR had told AT before the party that if AT was going to be drinking alcohol,
she could stay in AR’s dormitory room for the night so she did not have to drive
back to RAF Mildenhall. AT did drink that night so she decided to stay in AR’s
room. AR left and went to another friend’s room for the night. AR told AT that
AT could tell everyone to leave..
After AR and others left, AT was left in AR’s room with three male Airmen,
including Appellant. They continued to play games, drink, and talk. Appellant
made a couple of sexually charged comments and AT became uncomfortable.
When the two other male Airmen decided to leave in the early hours of the
morning, AT made sure that Appellant left as well.
AT laid down to go to sleep but was interrupted by Appellant knocking on
the dorm room window. She went to the front door where Appellant stated that
he left his cell phone in the room, so she let him in to look around. When Ap-
pellant asked if she had seen his phone, she stated she was unsure, she was
tired, and she would let him know if she found it. Appellant then left the room.
AT laid back down and soon fell asleep. The next thing AT remembered was
waking up with someone touching her. Specifically, AT felt pain in her vagina
and realized that someone’s fingers were penetrating her in a back-and-forth
motion. AT got out of the bed and moved to the other side of the room where
she saw that the other person in the room was Appellant. AT very firmly yelled
at Appellant to get out. Appellant responded, “my bad,” he needed a place to
sleep, and asked to sleep there. AT said “No” and Appellant eventually left. AT
noticed that when she shut the door, the window next to the door was cracked
open a little. She presumed the cracked window was how Appellant got into
the room, so she closed it.
A few minutes later as she was in bed trying to fall back asleep, AT saw the
door handle moving and heard something at the window. This happened a few
times before she yelled out that she was going to call the police. Appellant can
be seen on the surveillance camera outside the dormitory room and then run-
ning away from the room. AT sent a message to one of her friends telling them
what had happened and was eventually able to fall asleep.
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United States v. Maymi, No. ACM 40332
The next morning, AR and a few others returned to the room. They all
cleaned up the room and AT talked to them about what Appellant did. Later,
AT went back to RAF Mildenhall and eventually reported the incident to law
enforcement.
In April 2021, AT had a meeting over “Zoom”4 with the Third Air Force staff
judge advocate (SJA).5 AT discussed with the SJA the case moving forward.
The SJA talked about the possible toll that these cases going forward can take
on people and asked AT if that was okay. The SJA told AT that he would “have
her back” regardless of whether AT decided to go forward with the trial or not.
He further stated that they would make sure that nothing like this would hap-
pen again at their base. AT took some time to think after the meeting and later
decided that she would participate in a court-martial.
During the presentencing proceedings, trial defense counsel presented ar-
gument where he stated, “You also have to consider that he will be – that he’s
been convicted of a sexual offense and a sex offender the rest of his life.” Trial
counsel objected asserting that this was improper argument. Trial defense
counsel asserted that United States v. Tyler, 81 M.J. 108 (C.A.A.F. 2021), per-
mitted the argument. The military judge heard the positions of the parties and
sustained the objection. He ruled that he would not allow argument on the
collateral consequence of sex offender registration but would consider the un-
sworn statement reference.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant challenges the legal and factual sufficiency of his sexual assault
conviction.
1. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt,
4 “Zoom” is an online application commonly used for conducting remote meetings.
5 It is clear from a review of the charge sheet, convening order, and post-trial docu-
ments that the Third Air Force staff judge advocate (SJA) was the convening author-
ity’s SJA.
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United States v. Maymi, No. ACM 40332
however, does not mean that the evidence must be free from conflict.” United
States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United
States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F.
2018). “[I]n resolving questions of legal sufficiency, 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).
As a result, “[t]he standard for legal sufficiency involves a very low threshold
to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(alteration in original) (citation omitted). The test for legal sufficiency “gives
full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1973)).
“The test for factual sufficiency is ‘whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses,’ [this] court is ‘convinced of the [appellant]’s guilt beyond a rea-
sonable doubt.’” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “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.’” Wheeler, 76 M.J. at 568(alteration in original) (quoting Washington, 57 M.J. at 399). This court’s re-
view of the factual sufficiency of evidence for findings is limited to the evidence
admitted at trial. See United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007)
(citations omitted); United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim.
App. 2021) (citation omitted), rev. denied, 82 M.J. 312 (C.A.A.F. 2022).
Appellant was convicted of sexual assault in violation of Article 120, UCMJ,
which required the Government to prove the following two elements beyond a
reasonable doubt: (1) that Appellant committed a sexual act upon AT, to wit:
penetrating her vulva with his finger, with an intent to gratify his sexual de-
sire; and (2) that Appellant did so without AT’s consent. See Manual for Courts-
Martial, United States (2019 ed.) (MCM), pt. IV, ¶ 60.b.(2)(d).
Appellant was also convicted of unlawful entry in violation of Article 129,
UCMJ, which required the Government to prove the following two elements
beyond a reasonable doubt: (1) that Appellant entered the applicable dormitory
room assigned to AR; and (2) that the entry was unlawful. See MCM, pt. IV,
¶ 79.b.(2)(a)–(b).
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2. Analysis
a. Sexual Assault
Appellant asserts that his conviction for sexual assault is both legally and
factually insufficient. He argues that AT was the only witness to the alleged
misconduct and that her version of what happened “grew over time,” thus cast-
ing doubt on the conviction.
A careful review of AT’s testimony as well as all the evidence presented in
the findings portion of the trial demonstrates that the military judge as the
trier of fact rationally found the essential elements of this crime beyond a rea-
sonable doubt. See Robinson, 77 M.J. at 297–98. AT’s testimony is corroborated
by numerous accounts of other witnesses present in AR’s room that night. Fur-
ther, the surveillance footage of the dorms showing the actions of the attendees
of the “Friendsgiving dinner” just outside the room, including Appellant’s, pro-
vides compelling corroborative evidence to AT’s description of the evening. Af-
ter weighing the evidence and making allowances for not having personally
observed the witnesses, we are ourselves convinced of Appellant’s guilt beyond
a reasonable doubt. See Reed, 54 M.J. at 41.
b. Unlawful Entry
Appellant asserts that his conviction for unlawful entry is both legally and
factually insufficient. Appellant again argues here that AT was the only wit-
ness to the alleged misconduct and that her version of what happened “grew
over time,” thus casting doubt on the conviction.
Here, these arguments can only undercut whether Appellant’s entry into
the dorm room was unlawful; there is no question that Appellant entered the
room. Surveillance video shows Appellant standing outside of the dorm room
for several minutes. He smoked something and paced along the walkway. He
walked towards the surveillance camera staring up at it for several seconds
and he tried to reach it but was unable to do so. He then walked back towards
the dorm room door. Appellant is seen reaching his right arm inside the win-
dow beside the door. A few seconds later—he removed his arm, looked into the
room through the window, slowly proceeded to open the door, and slowly
stepped inside the room. This footage significantly corroborates AT’s descrip-
tion of the evening’s events and removes any doubt that Appellant’s entry into
the room at that time was unlawful. Viewing the evidence in the light most
favorable to the Government, the military judge rationally found the essential
elements of unlawful entry beyond a reasonable doubt. See Robinson, 77 M.J.
at 297–98. Furthermore, after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses, we are
ourselves convinced of Appellant’s guilt beyond a reasonable doubt. See Reed,
54 M.J. at 41.
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B. Unlawful Influence
Appellant argues that the interaction between AT and the Third Air Force
SJA was “unusual” and therefore “raises the specter of unlawful command in-
fluence.”
1. Law
Article 37, UCMJ, states in relevant part:
No person subject to this chapter [10 U.S.C. §§ 801 et seq.] may
attempt to coerce or, by any unauthorized means, attempt to in-
fluence the action of a court-martial or any other military tribu-
nal or any member thereof, in reaching the findings or sentence
in any case, or the action of any convening, approving, or review-
ing authority or preliminary hearing officer with respect to such
acts taken pursuant to this chapter [10 U.S.C. §§ 801 et seq.] as
prescribed by the President.
National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92,
§ 532(a)(2), 133 Stat. 1198, 1359–60 (2019) (amending Article 37, UCMJ, 10
U.S.C. § 837).
We review allegations of unlawful command influence de novo. United
States v. Horne, 82 M.J. 283, 286 (C.A.A.F. 2022). The Defense has the initial
burden of raising the issue of unlawful command influence by presenting “some
evidence” of unlawful command influence, meaning the Defense “must show
facts which, if true, constitute unlawful command influence.” United States v.
Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999) (citation omitted). This “burden of
showing potential unlawful command influence is low, but is more than mere
allegation or speculation.” United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F.
2013) (citation omitted). If raised on appeal, an appellant must show: (1) facts
which, if true, constitute unlawful command influence; (2) the proceedings
were unfair; and (3) the unlawful command influence was the cause of that
unfairness. Id.; Biagase, 50 M.J. at 150. If that burden is met, the burden then
shifts to the Government to show beyond a reasonable doubt: (1) the predicate
facts do not exist; or (2) the facts do not constitute unlawful command influ-
ence; or (3) the unlawful command influence did not affect the findings and
sentence. Biagase, 50 M.J. at 151.
2. Analysis
Appellant fails to meet his initial burden of showing “some evidence” of un-
lawful influence. Appellant claims the discussion between the Third Air Force
SJA and AT was “unusual,” but does not articulate how that rises to unlawful
influence.
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Whether these conversations are unusual was not litigated at trial; Appel-
lant did not file a motion or present additional evidence, and points only to
AT’s brief testimony on this issue. Recognizing that the initial burden is low,
these facts still do not justify a conclusion that unlawful command influence
occurred. Appellant has not demonstrated “some evidence” of unlawful com-
mand influence and is not entitled to relief.
C. Sex Offender Registration as an Arguable Mitigating Factor
Appellant argues that trial defense counsel should have been able to argue
that because Appellant would have to register as a sex offender, that is a mit-
igating factor for the sentencing authority’s consideration.
1. Law
We review a military judge’s ruling on an objection to sentencing argument
for an abuse of discretion. United States v. Briggs, 69 M.J. 648, 650 (A.F. Ct.
Crim. App. 2010).
Sentencing arguments by counsel must be based upon evidence adduced at
trial and any fair inferences as may be drawn therefrom. United States v.
White, 36 M.J. 306, 308 (C.M.A. 1993). “Further, sentencing arguments ‘cannot
include a matter not supported by the facts’” or reasonable inferences drawn
therefrom. Briggs, 69 M.J. at 650 (quoting United States v. Beneke, 22 C.M.R.
919, 922 (A.F.B.R. 1956)).
“A collateral consequence is ‘[a] penalty for committing a crime, in addition
to the penalties included in the criminal sentence.’” United States v. Cueto, 82
M.J. 323, 327 (C.A.A.F. 2022) (citing United States v. Miller, 63 M.J. 452, 457
(C.A.A.F. 2006) (quoting Collateral Consequence, BLACK’S LAW DICTIONARY
(8th ed. 2004)). “The general rule concerning collateral consequences is that
courts-martial [are] to concern themselves with the appropriateness of a par-
ticular sentence for an accused and his offense, without regard to the collateral
administrative effects of the penalty under consideration.” United States v.
Talkington, 73 M.J. 212, 215 (C.A.A.F. 2014) (alteration in original) (citation
omitted).
Sex offender registration is a collateral consequence of the conviction alone,
not the sentence. Cueto, 82 M.J. at 327 (citing Talkington, 73 M.J. at 213).
2. Analysis
Trial defense counsel argued, “You also have to consider that he will be –
that he’s been convicted of a sexual offense and a sex offender the rest of his
life.” Trial counsel objected and the military judge sustained the objection after
hearing the position of the parties. It is well settled that collateral conse-
quences are not appropriate matter for argument in sentencing. Our superior
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court made clear in Talkington that sex offender registration is a collateral
consequence. Id. Hence, argument on sex offender registration is improper.
Appellant argues, as his trial defense counsel did at trial, that Tyler
changed the analysis with regards to this issue. 81 M.J. at 108. In Tyler, the
United States Court of Appeals for the Armed Forces held that “[i]n the ab-
sence of explicit statutory limitation, or other clear evidence of Congress’s or
the President’s intent to limit comment on unsworn victim statements in
presentencing argument, we hold either party may comment on properly ad-
mitted unsworn victim statements.” Id. at 113 (footnote omitted). The court
recognized that procedurally, the victim’s right to make a statement was akin
to an accused’s right of allocution and presumed that Congress and the Presi-
dent intended unsworn victim statements to be treated similarly to an ac-
cused’s unsworn statement. Id. at 112. Notably though, the court did not hold
that counsel may comment on collateral consequences contained in the un-
sworn victim statements. Therefore, while Tyler provided guidance with re-
gards to unsworn victim statements, it did nothing to change the law regarding
the prohibition on counsel arguing collateral consequences.
As trial defense counsel’s argument was improper when he referenced a
collateral consequence, sex offender registration, the military judge did not err,
let alone abuse his discretion, by sustaining the objection to such reference.
D. Sentence Appropriateness
Appellant argues that his sentence, which included a dishonorable dis-
charge, confinement for 15 months, forfeiture of all pay and allowances, and
reduction to the grade of E-1, is unduly severe.
1. Law
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006) (footnote omitted). We may affirm only as much of the
sentence as we find correct in law and fact and determine should be approved
based on the entire record. Article 66(d), UCMJ, 10 U.S.C. § 866(d). We assess
sentence appropriateness by considering the particular appellant, the nature
and seriousness of the offenses, the appellant’s record of service, and all mat-
ters contained in the record. United States v. Fields, 74 M.J. 619, 625 (A.F. Ct.
Crim. App. 2015). While we have significant discretion in determining whether
a particular sentence is appropriate, we are not authorized to engage in exer-
cises of clemency. Id.
2. Analysis
Appellant personally asserts that his sentence is unduly severe considering
his alcoholism and the positive comments in his character letters. During
presentencing, Appellant introduced an unsworn statement, seven character
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United States v. Maymi, No. ACM 40332
letters, a summation of awards and decorations received, and an assortment of
photographs, mostly of him with his family.
Appellant’s crimes were particularly aggravating. On a military installa-
tion in a foreign country, he unlawfully entered the dorm room of another Air-
man in the early hours of the morning and proceeded to sexually penetrate her
while she slept. For his crimes, he faced a mandatory dishonorable discharge
and maximum confinement in excess of 30 years.
After carefully considering Appellant, the nature and seriousness of the of-
fenses, the particularized extenuating and mitigating evidence, and all the
other matters in the record of trial, we conclude Appellant’s sentence is not
inappropriately severe.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).6 Accordingly, the
findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
6 We note that in his clemency request, Appellant requested that the convening author-
ity waive automatic forfeitures. The convening authority purported to grant waiver of
the automatic forfeitures commencing 14 days after the sentence was adjudged for six
months, or until release from confinement or the expiration of Appellant’s term of ser-
vice, whichever was sooner. However, he did not grant any clemency with regards to
the adjudged total forfeitures. Appellant does not raise any issues with regards to these
actions or assert any prejudice. The record does not demonstrate any prejudice and we
find none.
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