United States v. Chikaka

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, D.C. KING, T.H. CAMPBELL
Appellate Military Judges
UNITED STATES OF AMERICA
v.
NHUBU C. CHIKAKA
STAFF SERGEANT (E-6), U.S. MARINE CORPS
NMCCA 201400251
GENERAL COURT-MARTIAL
Sentence Adjudged: 14 March 2014.
Military Judge: LtCol D.M. Jones, USMC.
Convening Authority: Commanding General, Marine Corps Recruit Depot/Eastern
Recruiting Region, Parris Island, NC .
Staff Judge Advocate's Recommendation: LtCol K.M. Navin, USMC.
For Appellant: Maj Michael Magee, USMC.
For Appellee: Maj Suzanne Dempsey, USMC; Capt Matthew Harris, USMC.
12 April 2016
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
KING, Senior Judge:
A general court-martial composed of officer and enlisted members convicted the
appellant, contrary to his pleas, of an attempt as a lesser included offense of abusive sexual
contact, nine general order violations, wrongful sexual contact, abusive sexual contact, four
obstructions of justice, indecent language, and adultery, in violation of Articles 80, 92, 120, and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 892, 920, and 934 (2007 and 2012).1
The appellant was acquitted of another abusive sexual contact and the military judge dismissed a
1
The specifications alleged offenses under both 2007 and 2012 versions of Article 120, UCMJ, 10 U.S.C. § 920.
general order violation specification for its failure to state an offense. The members sentenced
the appellant to total forfeitures, reduction to pay grade E-1, confinement for 12 years, and a
dishonorable discharge. The convening authority (CA) approved the sentence as adjudged.
Initially, the appellant raised seven assignments of error (AOEs), including that he was
deprived of his right to submit clemency matters for the CA’s consideration. Consequently, on
24 June 2015, we set aside the original CA’s action and returned the record of trial to afford the
appellant an opportunity to submit clemency matters. After the appellant did so, the CA
disapproved confinement in excess of 10 years as a “matter of clemency” and approved the
remaining sentence as adjudged. The case is now before us for completion of review, wherein
the appellant sets forth 13 AOEs,2 including the following: the obstruction of justice
specifications failed to state an offense; legal and factual insufficiency; unreasonable
multiplication of charges; cumulative error, and; the denial of speedy post-trial review.
After carefully considering the record of trial, parties’ pleadings, and oral argument on
AOEs 1 and 3, we conclude that Specifications 1, 5, and 6 under Charge III represent an
unreasonable multiplication of charges and that the appellant was prejudiced during sentencing
by the erroneous admission of evidence. We take corrective action in our decretal paragraph.
With that action, the remaining findings and reassessed sentence are correct in law and fact, and
no error materially prejudicial to the appellant’s substantial rights remains. Arts. 59(a) and
66(c), UCMJ.
Background
The appellant was a married Marine recruiter in the Sixth Marine Corps District (6MCD)
at Recruiting Substation (RS) Douglasville, GA, where his duties included visiting high schools
to recruit young men and women into the United States Marine Corps. His duties also included
assisting enlisted “poolees” in matriculating into the Marine Corps before reporting to recruit
training, including providing them transportation to and from Marine events (such as physical
training, social events, etc.), meeting with them in his official office spaces, and otherwise
assisting them to prepare for their induction.3
While serving in this capacity, the appellant met and interacted with the four female
victims in this case, all of whom were over the age of 16 and in high school at the time. Shortly
after these students expressed interest in joining the Marine Corps, the appellant began engaging
in unprofessional behavior with and/or toward them. The misconduct included his sending
thousands of inappropriate electronic communications, engaging in unwanted sexual activity
with two of the four, and plying a third with alcohol and commencing an adulterous relationship
with her. One of the victims’ boyfriends, himself a poolee, confronted the appellant at the
recruiting office, where the appellant apologized for his misconduct. While committing his
misconduct, and even after the crimes were reported, the appellant encouraged the victims to
refrain from disclosing his behavior to others. Additional facts necessary to resolve the AOEs
are included below.
2
See Appendix A.
3
At trial, the victims were referred to as “poolees” or members of the “Delayed Entry Program” (DEP).
2
Discussion
1. Failure to State an Offense
The Government charged the appellant with four obstructions of justice in violation of
Article 134, UCMJ.4 The elements of obstruction are: (1) that the accused wrongfully did a
certain act; (2) that the accused did so in the case of a certain person against whom the accused
had reason to believe there were or would be criminal proceedings pending; (3) that the act was
done with the intent to influence, impede, or otherwise obstruct the due administration of justice;
and (4) that, under the circumstances, the conduct of the accused was to the prejudice of good
order and disciple in the armed forces or of a nature to bring discredit upon the armed forces.
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 96.
Although the defense lodged no objection at trial, the appellant now claims that the
obstruction specifications fail to state an offense. The Government concedes that the
specifications omitted language contained in the third element listed above, but contends that the
specifications are nonetheless sufficient. We agree with the Government.
Where defects in a specification are raised for the first time on appeal, we will review the
defect for plain error. United States v. Humphries, 71 M.J. 209, 213 (C.A.A.F. 2012). Under a
plain error analysis, the appellant must demonstrate that: (1) there was error; (2) the error was
plain or obvious; and, (3) the error materially prejudiced a substantial right of the accused.
United States v. Tunstall, 72 M.J. 191, 193-94 (C.A.A.F. 2013). A charge and specification
“‛[are] sufficient if [they], first, contain[] the elements of the offense charged and fairly inform[]
a defendant of the charge against which he must defend, and, second, enable[] him to plead an
acquittal or conviction in bar of future prosecutions for the same offense.’” United States v.
Norwood, 71 M.J. 204, 206 (C.A.A.F. 2012) (quoting Hamling v. United States, 418 U.S. 87,
117 (1974)) (alteration in original). The specification may allege the elements “expressly or by
necessary implication.” RULE FOR COURTS-MARTIAL 307(c)(3), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.); United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011)
(when a specification does not expressly allege an element of the intended offense, appellate
courts must determine whether the element was necessarily implied); United States v. Russell, 47
M.J. 412, 413 (C.A.A.F. 1998) (“A specification is sufficient so long as [the elements] may be
found by reasonable construction of other language in the challenged specification.”) (citations
and internal quotation marks omitted) (alteration in original). The question of whether a
specification states an offense is a question of law, which we review de novo. United States v.
Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012).
In this instance, the specifications omit the words, “with the intent to influence, impede,
or otherwise obstruct the due administration of justice.” Instead, and as suggested by the model
specification found in MCM, Part IV, ¶ 96(f), the specifications allege that the appellant
“wrongfully endeavor[ed] to influence the actions of [one of the victims], a witness in the case of
[the appellant], by discouraging her communication of information relating to violations of the
[U.C.M.J.] to a person authorized to conduct or engage in the investigation[.]”
4
These offenses were alleged in Specifications 1, 3, 5, and 6 under Charge III.
3
The phrase “wrongfully endeavored to influence the actions of . . . a witness” necessarily
implied and provided sufficient notice to the appellant of the third element and protected him
from future prosecutions for the same offense. We thus find no error.
2. Legal and Factual Sufficiency of Obstructing Justice Convictions
The appellant claims that the four charges of obstructing justice are legally and factually
insufficient since the prosecution “failed to prove [that he] had reason to believe there would be
criminal proceedings pending or that he had the specific intent required for the offense[] of
obstructing justice.”5
In accordance with Article 66(c), U.C.M.J., we review questions 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 considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found all the essential elements beyond a
reasonable doubt.” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (internal
quotation marks and citations omitted). In weighing questions of legal sufficiency, the court is
“bound to draw every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
The test for factual sufficiency is “whether, after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses,” we are convinced of the
accused’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987).
Each of the four obstruction specifications alleged a different victim as the “witness.”
The prosecution established that the appellant sent several inappropriate texts to each victim.
BH testified that she did not keep any of the incriminating texts because “every time that he
would text me he would say, ‘Make sure that you delete all of these messages. If anybody ever
sees them, then I’m going to get in trouble and you’re going [to] get in trouble. And you won’t
be able to leave for boot camp, and I’m going to be fired.’”6 Similarly, BJ testified that the
appellant told her “to delete [the messages] because we would both get in trouble. He would get
in trouble, lose his career, lose his family, lose his kids; I wouldn’t go to boot camp.”7 Finally,
LB testified that “[the appellant] told me that I should delete them because it could ruin his
career and maybe affect him getting custody of his children, things of that nature.”8 All of these
requests to delete texts occurred prior to any report of misconduct.
On or about 8 August 2012, after the misconduct was reported, the appellant sent a single
text message to these three victims:
5
Appellant’s Brief of 5 Jan 2015 at 32.
6
Record at 419.
7
Id. at 478.
8
Id. at 548.
4
[BJ, BH, LB] . . . I did not know I was offending any of you and am sorry whole
heartedly please forgive me and allow me to remain a Marine something I have
been doing for 13yrs something that I love to do. . . . I am asking as a friend to
talk to you all so I maybe [sic] clear on what I am doing that I did not know was
offending you so I can stop. PLEASE I do not want to loose [sic] my kids or my
career or any of the friendships we have formed. I am just praying and hoping
this is all a misunderstanding. Please txt or call me first thing in the morning.9
There is sufficient evidence in this case to reasonably conclude that the appellant realized that he
had committed a UCMJ offense which had been reported before he sent the 8 August 2012 text
message. We have little difficulty concluding that the appellant then had reason to believe his
command would pursue investigative and follow-on criminal proceedings, and that his text
message was an effort to implore the victims to recant or minimize his misconduct. Thus, the
members could reasonably infer that the appellant acted with the intent to influence, impede, or
otherwise obstruct the due administration of justice.
Our analysis of Specification 1, 5, and 6 of Charge III does not end there because, while
the Government concedes those specifications are “based on a single text message” to BJ, BH,
and LP, each specification alleges a time period beginning at least a month before the 8 August
2012 text.
An accused can obstruct justice even if an investigation is not already underway. United
States v. Finsel, 36 M.J. 441, 444 (C.M.A. 1993). The law requires only that, at the time of his
act, the accused had reason to believe there were or would be criminal proceedings pending
against him. United States v. Athey, 34 M.J. 44, 48 (C.M.A. 1992). Thus, obstruction of justice
may occur absent formal charges, prior to any formal proceeding, United States v. Jones, 20 M.J.
38, 40 (C.M.A. 1985), or even when the accused only “believed that some law enforcement
official of the military . . . would be investigating his actions” and elicited the aid of others to
conceal his crime, Athey, 34 M.J. at 48. In contrast, merely concealing one’s own misconduct is
not an obstruction of justice. United States v. Lennette, 41 M.J. 488, 490 (C.A.A.F. 1995).
Determining whether an act is undertaken to avoid detection or in an effort to corrupt the
processes of justice is determined “‛on a case-by-case basis, considering the facts and
circumstances surrounding the alleged obstruction and the time of its occurrence with respect to
the administration of justice.’” Id. (quoting Finsel, 36 M.J. at 443).
We agree with the appellant that the evidence is insufficient to sustain convictions for
obstructing justice at times or by means other than the single text message. Evidence the
appellant asked the victims to delete texts prior to his misconduct being reported is insufficient to
establish that the appellant did any more than attempt to keep his misconduct concealed. See
Lennette, 41 M.J. at 490 (mere concealment of one’s misconduct is not obstruction of justice);
Athey, 34 M.J. at 49 (mere realization that one’s misconduct, if revealed, might result in criminal
prosecution is not enough to give one reason to believe there would be criminal proceedings
pending). To the extent that the specifications allege the appellant obstructed justice by asking
9
Prosecution Exhibit 8.
5
the victims to delete texts prior to any reporting, we except and dismiss the unproven language
about dates other than 8 August 2012.10
The remaining obstruction specification involves the fourth victim, LW. After the
appellant first met LW, he quickly began making inappropriate phone calls to her, during which
he asked about her sexual preferences. During the first of these calls, made prior to any report of
misconduct, the appellant warned LW that she “should not tell anybody because he could lose
his career and his children.”11 The appellant and LW then commenced a sexual relationship.
After the appellant’s misconduct was reported, LW called the appellant. He told her that the
other “three girls [were] lying about him,” and asked LW to “testify for him[,]” but LW refused,
concerned that she “was in the wrong” as well.12 She eventually testified against the appellant at
trial:
Q: What were you worried all about people finding?
A: Our phone records and us talking.
Q: Did he ever tell you what would happen if someone found out about you guys
having sex or the phone records?
A: Yes. He was always telling me that he would lose his kids and lose his career.
Q: What did he tell you to do so that that didn’t happen?
A: I just kept quiet.
Q: He told you to keep quiet?
A: Yes. Just don’t tell anybody.
Q: And did you ever tell anyone?
A: No.
Q: What did he say when you explained to him how nervous you were about your
phone records and all the communication and sex that you guys had?
A: He was like “[i]t’s okay” and we hung up.
Q: That was the end of the conversation?
A: Yes.
Q: Once you refused to testify?
A: Yes.13
10
For the same reason, we also except and dismiss the words “on divers occasions” from Charge III, Specification 1.
11
Record at 588.
12
Id. at 608.
13
Id. at 608-09.
6
This evidence, when viewed in the light most favorable to the prosecution, was sufficient
to allow a reasonable factfinder to find beyond a reasonable doubt that the appellant asked LW to
not “tell anyone” after he knew his misconduct had been reported—hence, after he had reason to
believe there would be an investigation into his activities with LW—and that his request was
with the intent to impede that investigation.
After weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, we are convinced of the appellant’s guilt on all four
obstruction specifications as modified.
3. Unreasonable Multiplication of Charges
Next, the appellant claims that the charges against him were unreasonably multiplied
since he was convicted of 16 specifications involving misconduct with four different victims.
“[T]he prohibition against unreasonable multiplication of charges has long provided
courts-martial and reviewing authorities with a traditional legal standard -- reasonableness -- to
address the consequences of an abuse of prosecutorial discretion in the context of the unique
aspects of the military justice system.” United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F.
2001). R.C.M. 307(c)(4) sets forth the regulatory expression of that prohibition, directing that
“[w]hat is substantially one transaction should not be made the basis for an unreasonable
multiplication of charges against one person.” The principle prohibits the prosecution from
needlessly “pil[ing] on” charges against an accused. United States v. Foster, 40 M.J. 140, 144 n.4
(C.M.A. 1994), overruled on other grounds by United States v. Miller, 67 M.J. 385 (C.A.A.F.
2009) .
We utilize the following non-exhaustive list of factors in determining whether
unreasonable multiplication of charges has occurred: (1) Did the accused object at trial; (2) Is
each charge and specification aimed at distinctly separate criminal acts; (3) Does the number of
charges and specifications misrepresent or exaggerate the appellant’s criminality; (4) Does the
number of charges and specifications unreasonably increase the appellant’s punitive exposure;
and (5) Is there any evidence of prosecutorial overreaching or abuse in the drafting of the
charges? Quiroz, 55 M.J. at 338-39. The issue of unreasonable multiplication of charges
involves the duty of this court to “‛affirm only such findings of guilty, and the sentence . . . as it .
. . determines, on the basis of the entire record, should be approved.’” United States v. Butcher,
56 M.J. 87, 93 (C.A.A.F. 2001) (quoting Art. 66(c), UCMJ).
While the remainder of the appellant’s argument on this AOE lacks merit, after
considering the Quiroz factors, we find three of the four obstruction specifications represent an
unreasonable multiplication of charges since they are based upon the appellant’s sending the
single text, discussed supra. See United States v. Guerrero, 28 M.J. 223, 226-27 (C.M.A. 1989)
(Act of simultaneously soliciting false testimony from two potential witnesses and charged as
two separate crimes improper and required consolidation). Therefore, we will consolidate
7
Specifications 1, 5, and 6 of Charge III into one specification14 and discuss, infra, whether to
remedy this error by reassessing the sentence or returning the case for a sentence rehearing.
4. Cumulative Error
Under the cumulative-error doctrine, “a number of errors, no one perhaps sufficient to
merit reversal, in combination necessitate the disapproval of a finding.” United States v. Banks,
36 M.J. 150, 170-71 (C.M.A. 1992) (internal quotation marks and citation omitted). The
cumulative effect of all plain and preserved errors is reviewed de novo. United States v. Pope,
69 M.J. 328, 335 (C.A.A.F. 2011). This court will reverse only if it finds the cumulative errors
denied the appellant a fair trial. Banks, 36 M.J. at 171.
The appellant argues that the military judge erred when he admitted: (1) a copy of
“6MCD Operation Restore Vigilance” Campaign Plan; (2) a picture of the then-Commandant of
the Marine Corps presenting an award to the great-grandfather of one of the victims; and (3) the
appellant’s commanding officer’s testimony about the necessity of a harsh sentence. In order to
resolve this AOE, we must first determine whether each of the actions individually constitute
error. After doing so, and individually evaluating the prejudicial impact of any error, we do not
find that disapproval of the findings is necessary.
a. Admission of the Operation Restore Vigilance Campaign Plan
After initial reports of the appellant’s misconduct, Colonel (Col) Bowers, Commanding
Officer, 6MCD, issued the Operation Restore Vigilance Campaign Plan (plan), which generally
established measures for 6MCD to take in an effort to eliminate unethical and criminal behavior
amongst recruiters, which he details at the beginning of the plan:
This past fiscal year, the 6th MCD suffered 40 incidents of substantiated recruiter
misconduct, with 19 of these incidents involving Marines engaging in
inappropriate behavior with people of the opposite sex. This averages to more
than three incidents per month in our communities, the end of a platoon’s worth
of once-promising Marines’ careers, and the immeasurable hurt and pain inflicted
upon once-proud family members. Not only is this completely unacceptable, but
it also threatens to undermine the broader trust, confidence, and respect the
American people have in their Marine Corps.15
14
“In that Staff Sergeant Nhubu C. Chikaka, U.S. Marine Corps, Recruiting Station Atlanta, Sixth Marine Corps
District, Eastern Recruiting Region, on active duty, did, at or near Douglasville, Georgia, on or about 8 August
2012, wrongfully endeavor to influence the actions of: Ms. L.B., Ms. B. J., and Ms. B.H., witnesses in the case of
the said Staff Sergeant Chikaka, by discouraging their communication of information relating to violations of the
Uniform Code of Military Justice to a person authorized to conduct or engage in an investigation, such conduct
being to the prejudice of good order and discipline in the armed forces or of a nature to bring discredit upon the
armed forces.” This language omits the excepted language discussed supra.
15
PE 14 at 1-2.
8
In the 10 pages that follow, the plan details Col Bowers’ intent and the responsibilities of the
chain of command in preventing and responding to allegations of recruiter misconduct.
The plan was offered by the prosecution in limine. The defense objected, arguing that the
plan was irrelevant since it failed to make any “fact at issue more or less likely,” and was unduly
prejudicial since it was promulgated after the appellant allegedly committed most of the
misconduct and would “confuse the issues”.16 Included in the MILITARY RULE OF EVIDENCE 403,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) objection was the defense argument
that, “you have the [6MCD] CO talking all about this recruiter misconduct that’s happened
recently -- wink, wink -- September 2012 that we need to stamp out[.]”17
The prosecution countered that even after the plan was implemented, the appellant
engaged in misconduct with LW. The military judge interpreted the Government’s response as
“[y]ou want to show that the accused was on notice to not engage in bad behavior.”18 The
prosecution continued:
[W]e’re talking about a charge and specification that directly deals with
inappropriate relationships almost a year after this directive came out. And this
shows plan, intent on part of the accused, that he was trained and educated that
such relationships were inappropriate. He had all the tools in his tool box to do
the right thing, and yet he goes out of his way after being removed from recruiting
duty to continue to engage with prospective applicants in an inappropriate
manner.19
The defense then noted that the appellant was charged with violating only general orders,
so knowledge was not an element: “It might be an issue in aggravation . . . . That’s fine. We
don’t understand how it’s relevant in that sense, sir, whether he was trained on this, whether he
wasn’t trained on it. . . . So we would also object on relevance grounds for that, sir.”20 The
military judge conducted a MIL. R. EVID. 403 balancing test and sustained the objection.
However, he invited a subsequent offer for admission if the prosecution could establish the
plan’s relevance and “if you can explain to me how it overcomes the hurdle of M.R.E. 403[.]”21
Major (Maj) McCutcheon, Commanding Officer, RS Atlanta -- a subordinate command
of 6MCD -- was the appellant’s commanding officer when the misconduct was first reported. He
testified at trial that the appellant had attended a week-long training at which “ethics [and]
16
Record at 322, 325.
17
Id. at 320.
18
Id. at 321.
19
Id..
20
Id. at 322.
21
Id. at 325.
9
appropriate versus inappropriate relationships” were covered.22 Without addressing why the plan
was admissible under MIL. R. EVID. 403, the prosecution again offered the plan into evidence,
arguing it was “highly relevant to know the training and education the accused got especially
since we have a situation where now he’s moving from a canvassing recruiter to [RS Atlanta]
and whether or not these orders -- plans still apply.”23 Over a renewed objection, and without
placing his MIL. R. EVID. 403 analysis on the record, the military judge admitted the plan into
evidence. After establishing that the plan went into effect in September 2012, the military judge
provided a limiting instruction to the members:
[S]ome of the charges were before that time period that the accused is accused of
violating, or charged with violating. So the [plan] would have no effect on him if
it came after that. But anything after September -- because there [are] dates on
[the charge sheet] that go up through 2013 -- then that order would be applicable.
So you could consider it for that purpose, his notice. His familiarity with what
would be required of him as a recruiter for the tendency, if any, that you think that
it has on whether he violated the orders or not. . . .
....
So that’s my limiting instruction. He is not charged with violating Colonel
Bowers’ Campaign Restore Vigilance order or program. Okay. So that’s the
concern. . . . I am allowing it in this trial for its effect on what this accused knew
or didn’t know and how that impacted whether he violated these other violations
[sic]. Again, one of the early arguments by the defense was to violate a general
order doesn’t necessarily require that you have knowledge of the order. Okay. So
– and I will explain that when I explain the elements to you. But for whatever
weight you believe it has on [the charges related to LW]. . . .
....
I think that was the main point because there was evidence that [LW] -- that he
continues the relationship after he left [the appellant’s assigned duty station].
Okay. So this would go to knowledge, that’s it. He’s not charged with violating
it.24
Maj McCutcheon then testified that the plan was emailed to all-hands, that the appellant
received it after moving to RS Atlanta, and that the appellant’s new duties required no contact
22
Id. at 685.
23
Id. at 687.
24
Id. at 687-88.
10
with poolees.25 Maj McCutcheon also testified that the plan’s purpose was “to ensure a greater
ethical conduct with an emphasis on Sexual Assault Prevention and Response.”26
After Maj McCutcheon’s and before Col Bowers’ testimony, the military judge sua sponte
modified the basis upon which he found the plan admissible and again instructed the members:
“[O]nce again, same issue. I assume [Col Bowers is] going to talk about the campaign plan as
that’s relevant for any charges involving [LW] or charges that occurred after this incident and
how it relates to prejudicial good order and discipline, service discrediting, that kind of issue.
You can consider it within those constraints.”27
Col Bowers testified that the plan’s purpose was to “[e]radicate sexual misconduct from
the [6MCD] because we had a significant problem in my view,” and that the plan prohibits
recruiters from being alone with applicants of the opposite sex.28 He further opined that “having
a recruiter like SSgt Chikaka talking to poolees about how large his penis is or how well they
give oral sex” was prejudicial to good order and discipline because “[t]his conduct is completely
inappropriate. It goes against our core values. It goes against my written guidance and intent,
which specifies to watch out for the degrading impact of unprofessional language. [The plan]
talks about ‘words perceive actions,’ how this type of language” has no place in the Marine
Corps and no place in 6MCD specifically.29
The military judge intervened and instructed the members that Col Bowers’ opinion
about the alleged crimes was not relevant. Only an opinion about “how it affects good order and
discipline in the unit; that’s what’s admissible. Okay. So no member can think, ‘Well, the
Colonel doesn’t like what’s happened here allegedly so I must convict.’” The members all
indicated that they “understood” this instruction.30
The prosecution next asked Col Bowers about disorder. Specifically, the trial counsel
asked what “talking to a poolee about your penis or having sex with a poolee, what does that do
within the community of trust, and how important is trust to the recruiting process?” Col Bowers
responded, “I view that as a breach of trust with the American people. I have issued cards to
every Marine in the [6MCD] with our three primary objections. The top objective is to reinforce
and expand upon the trust of the American people. . . . and that is breach of trust in my view.”31
The defense did not cross-examine Col Bowers.
25
Id. at 689.
26
Id. at 686.
27
Id. at 696.
28
Id. at 699.
29
Id. at 699-700.
30
Id. at 700.
31
Id.
11
In closing argument, the trial counsel used the plan to argue that the appellant knew what
was required of him, and that although he knew about the plan, the appellant ignored it:
Now, Col Bowers came in here and he talked to you about Campaign Restore
Vigilance; yet another procedure in place to assure that the accused succeeds on
recruiting duty. A campaign that was sent out to him through e-mail, that was
taught at the RS training. Every month they hit on it. It was the Colonel’s
campaign plan for the entire [6MCD] on how to conduct business. And yet he’s
out in a bar with a prospective applicant.32
The appellant now argues that the military judge abused his discretion by admitting the
plan, since it was irrelevant and failed to satisfy MIL. R. EVID. 403. The Government counters
that the plan was relevant to show the impact the appellant’s conduct with LW had on good order
and discipline and whether or not that conduct was service discrediting.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in determining the action.”
MIL. R. EVID. 401. However, the military judge “may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the members, undue delay, wasting time, or needless
presentating cumulative evidence.” MIL. R. EVID. 403.
We review a military judge’s evidentiary rulings for an abuse of discretion. United States
v. Dease, 71 M.J. 116, 120 (C.A.A.F. 2012). When a military judge balances the competing
interests in admitting or excluding evidence, the ruling will not be overturned unless there is a
clear abuse of discretion. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000). When a
military judge fails to articulate a MIL. R. EVID. 403 balancing analysis on the record, the ruling
receives less deference. Id. When the judge fails to even conduct the MIL. R. EVID. 403
analysis, the ruling receives no deference at all. Id. Since the military judge failed to conduct
this analysis at trial, we are unable to afford his ruling on this matter any deference.
We begin by recognizing that the prosecution was required to prove beyond a reasonable
doubt that the Article 134 charges were “to the prejudice of good order and discipline” or “of a
nature to bring discredit upon the armed forces,” and that it is on these grounds that the military
judge ultimately admitted the plan. MCM, Part IV, ¶ 60(b)(2). However, while the plan was
perhaps minimally relevant in this regard, any such probative value was dwarfed by the risk of
unfair prejudice.
First, any relevant, probative information in the plan was ultimately cumulative, since
both Maj McCutcheon and Col Bowers testified about the terminal elements. Moreover, that Col
Bowers created the plan within weeks after the appellant’s misconduct and its account of
“substantiated recruiter misconduct” created the risk of the members concluding that the
command “substantiated” the appellant’s misconduct and had to institute significant reactive
measures as a result. Published guidance about “completely unacceptable” behavior exacerbated
32
Id. at 789.
12
the risk that the members would unfairly factor Col Bowers’ previous substantiation and very
obvious concerns into their deliberations, verdict, and sentence. The military judge’s curative
instruction did not obviate this risk. In fact, contradictory instructions about how the members
could consider the plan created risks of inadvertently misleading or confusing them.33 Because
the probative value of this evidence was substantially outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the members, or needless presentation of
cumulative evidence, the military judge abused his discretion in admitting it.
Since the danger of unfair prejudice was sufficient to render the evidence inadmissible,
we must analyze whether any prejudice actually occurred. Whether the erroneous admission of
evidence was harmless is a question of law that we review de novo. United States v. Walker, 57
M.J. 174, 178 (C.A.A.F. 2002); United States v. Grijalva, 55 M.J. 223, 228 (C.A.A.F. 2001).
“When a military judge abuses his discretion in the M.R.E. 403 balancing analysis, the error is
nonconstitutional.” United States v. Solomon, 72 M.J. 176, 182 (C.A.A.F. 2013) (citing United
States v. Berry, 61 M.J. 91, 97 (C.A.A.F. 2005)). The Government must “demonstrate that the
error did not have a substantial influence on the findings.” United States v. McCollum, 58 M.J.
323, 342 (C.A.A.F. 2003). In making this determination, we weigh the strength of the
prosecution’s case, the strength of the defense case, the materiality of the evidence in question,
and the quality of the evidence in question. United States v. Barnett, 63 M.J. 388, 397 (C.A.A.F.
2006).
The prosecution’s case was powerful. Multiple victims testified that the appellant used
his position and the same modus operandi to repeatedly engage in similar predatory misconduct.
This testimony was supported by pictures, a text message, and records of hundreds of text
messages and phone calls. Significantly, when confronted with his misconduct by the boyfriend
of one of his victims prior to any report, the appellant apologized.
Conversely, the defense relied upon testimony of former recruits that the appellant never
acted unprofessionally around them, the victims’ minor inconsistent statements, evidence that
one victim declined a request for her personal cell phone during the investigation, and affidavits
attesting to the appellant’s military character. Although we recognize the plan may have been
material and the risk of prejudice substantial, the overwhelming strength of the prosecution’s
case convinces us that the plan did not substantially influence the findings. We hold the error
was therefore harmless on findings. We analyze the prejudicial impact on sentencing, infra.
b. Photo of Former Commandant Admitted at Sentencing
At sentencing, the trial counsel sought to introduce a picture of a testifying victim’s
great-grandfather posing with the Commandant of the Marine Corps after an award presentation,
offered as evidence that the victim “came from a family of Marines” and therefore wanted to
continue that tradition.34 The defense objected, citing MIL. R. EVID. 403. In admitting the photo,
33
The plan was not relevant to show knowledge. Knowledge of the general order was not a “fact of consequence”
in these proceedings. MIL. R. EVID. 401.
34
Record at 858.
13
the military judge ruled that “[i]t’s probative value is not substantially outweighed by the danger
of unfair prejudice to the accused or to confusion of the issues by the members or misleading the
members or any other factor under M.R.E. 403. It has probative value based upon this witness’
testimony about why she joined the Marine Corps.”35
R.C.M. 1001(b)(4) provides that “[t]he trial counsel may present evidence as to any
aggravating circumstances directly relating to or resulting from the offenses of which the
accused has been found guilty.” This evidence is subject to the balancing test of MIL. R. EVID.
403, United States v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009), and we afford the military
judge broad discretion to determine whether to admit sentencing evidence in aggravation,
United States v. Clemente, 50 M.J. 36, 37 (C.A.A.F. 1999). When the military judge conducts a
MIL. R. EVID. 403 analysis on the record, as here, we afford his decision deference and “exercise
great restraint” in reviewing his ruling. United States v. Harris, 46 M.J. 221, 225 (C.A.A.F.
1997). Applying that standard here, we find no abuse of discretion in his decision to admit the
photo.
c. Commanding Officer’s Testimony Urging a Harsh Sentence
Maj McCutcheon testified at sentencing that the Marines at his command are aware of the
appellant’s court martial; the command will build a “case study” of the appellant’s
circumstances, including the sentence; the command will then present that case study to Marines
in the command to “let the Marines kind of absorb that . . . [a]nd [know that] if you choose to
still go away from that prevention, these are – this is the window that’s opened that you’re going
to pass through.”36 From that foundation, the following colloquy between the trial counsel and
the Maj McCutcheon ensued:
Q: So you brief your canvassing recruiters on the consequences, a.k.a. the
sentence of a case study like this one?
A: That is correct.
Q: Can you explain to the members how important it is to set a strong example for
general deterrence in 6th Marine Corps District as a whole?
A: Yes. . . . If you – if this type of thing, any type of misconduct, fraudulent
enlistment, some kind of crime out in town, driving under the influence, those are
all bad. But if you have something that completely goes against what we stand
for, preys upon a weaker group of people, younger, they’re less experienced; in
many cases they’re juveniles, 17. . . . [A]nd we say, “Hey, if we’re just going to
treat that lightly.” So . . . there’s maybe . . . a precedent set that it’s somewhat on
par with someone who gets a DUI or that it didn’t listen when a parent said “Well,
he had surgery when he was 12.” “Well, I don’t know if I want to bring that up
because I’m afraid this kid won’t be able to join.” To me there’s no parallel there.
So [the sentence] needs to be something that says, “If you do this, everything
around you, generally speaking, is going to stop.” And Marines that are
35
Id. at 858-59.
36
Id. at 871.
14
potentially in a vulnerable window – for whatever reason – that might be
predisposed to [commit similar misconduct] would see that as a deterrent and say
that, “There’s no middle ground. There’s no way to . . . negotiate out of this.
There’s no way to lessen the blow. It’s a significant blow. It’s something I do
not want to have happen to me.”37
The trial counsel reminded the members of the commanding officer’s testimony and the
Campaign Plan as he argued for 10 years of confinement and a dishonorable discharge:
“General deterrence is a big issue, and we want to talk about everything the RS CO talked about,
Campaign Restore Vigilance, the need to send a strong message inside the Marine Corps . . . [to]
all the canvassing recruiters out there right now that might be teetering . . . [w]e need a strong
message that this -- this misconduct will not be tolerated.”38
Although no objection was lodged at trial, the appellant now argues that Maj
McCutcheon’s testimony to “the members [that] they needed to give a harsh sentence to be used
as an example to others” was inadmissible sentencing evidence, and that “the danger of unfair
prejudice is plain.” Further, the appellant argues the prejudicial effect was further enhanced by
one of the members knowing Maj McCutcheon well and being assigned to 6MCD at the time of
trial, where he was directly subordinate to Col Bowers. The Government counters that this
testimony “was appropriate sentencing evidence and properly informed the [m]embers’
consideration of the effect their sentence would have within the Recruiting District.”
Failure to object to the admission of evidence at sentencing forfeits appellate review of
the issue absent plain error. See United States v. Eslinger, 70 M.J. 193 197-98 (C.A.A.F. 2011).
To prevail under a plain error analysis, the appellant bears the burden of showing that: there was
an error; it was plain or obvious; and the error materially prejudiced a substantial right. United
States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005).
(1) There was Plain Error
First, we concur with the appellant that Maj McCutcheon’s testimony was a plea for the
members to award a harsher sentence as an example to other Marine recruiters within the
command. While general deterrence is a relevant factor in sentencing arguments, see United
States v. Akbar, 74 M.J. 364, 394 (C.A.A.F. 2015) (trial counsel are free to argue general
deterrence during their sentencing statement provided they do not rely exclusively upon that
consideration), that relevancy neither trumps R.C.M. 1001(b) nor eliminates the necessity to
comply with MIL. R. EVID. 403.
R.C.M. 1001(a)(1) states that “[a]fter findings of guilty have been announced, the
prosecution and defense may present matter pursuant to this rule to aid the court-martial in
determining an appropriate sentence.” (Emphasis added). The rule then permits the Government
to offer service data from the charge sheet, personal data and character of prior service of the
37
Id. at 871-72. Civilian Defense Counsel cross-examined the witness and established that the command had already
experienced a deterrent effect since misconduct had decreased considerably.
38
Id. at 892-93.
15
accused, evidence of prior convictions of the accused, evidence in aggravation, and evidence of
rehabilitative potential. R.C.M. 1001(b)(1)-(5). Evidence in aggravation is “any aggravating
circumstances directly relating to or resulting from the offenses of which the accused has been
found guilty” and includes “evidence of significant adverse impact on the mission, discipline, or
efficiency of the command directly and immediately resulting from the accused’s offense.”
R.C.M. 1001(b)(4).
Maj McCutcheon’s testimony did not fall into any R.C.M. 1001(b) category. It
specifically did not directly relate to or result from the accused’s offense. Instead, it related only
to general deterrence -- the prospective utility of the appellant’s sentence, the singular purpose of
which was to send a message to the members that the command wanted a sentence harsh enough
to stop a problem that the members had already heard was pervasive. Although the trial counsel
may argue general deterrence, that sentencing principle does not provide a basis for ignoring the
limitations of R.C.M. 1001(b).
Moreover, our sentencing jurisprudence has long recognized that testimony regarding an
appropriate sentence is plainly improper under R.C.M. 1001(b), especially when the witness is
the accused’s commander. See United States v. Horner, 22 M.J. 294, 296 (C.M.A. 1986)
(holding testimony regarding commander’s opinion as to the type of punishment which should
be adjudged for a particular crime improper: “[i]t would be ironic and absurd if R.C.M.
1001(b)(5) were construed to allow the parties to call witnesses simply for the purpose of telling
the court-martial what offenses, in the witnesses’ estimation, require punitive discharges or
lengthy confinement, etc.”); United States v. Pearson, 17 M.J. 149, 153 (C.M.A. 1984) (holding
that when command witness implied that the entire unit was hanging on the outcome of the trial,
the “fundamental sanctity of the court-martial was violated” since “the court-martial alone is
entrusted with the responsibility of representing the community in arriving at an appropriate
sentence for an accused.”). That case law reflects a determination that testimony about sentence
severity is simply not helpful to the members and can implicate undue command influence
concerns. See United States v. Griggs, 61 M.J. 402, 409 (C.A.A.F. 2005); United States v.
Cherry, 31 M.J. 1, 5 (C.M.A. 1990). While much of that jurisprudence relates to improper
opinions as evidence of rehabilitative potential under R.C.M. 1001(b)(5), the logic for the
prohibition applies equally to the same testimony provided under the guise of “general
deterrence.” As our superior court noted decades ago, “The question of appropriateness of
punishment is one which must be decided by the court-martial; it cannot be usurped by a witness.
Thus, for the same reasons we do not permit an opinion of guilt or innocence, or of ‘truthfulness’
or ‘untruthfulness’ of witnesses, we do not allow opinions as to appropriate sentences.” United
States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989) (citations omitted). While it can be proper for an
appellant’s commanding officer to testify about the impact of the appellant’s crimes on the unit,
see R.C.M. 1001(b)(4), it is plainly improper to testify that the misconduct should be dealt with
harshly.
Finally, even if the testimony was admissible under R.C.M. 1001(b), it was barred by
MIL. R. EVID. 403. The Government concedes that the purpose of the testimony was to inform
the members that, “if they provided a significant sentence, it would, in fact, provide a deterrent
effect within the Sixth Recruiting District.” But we doubt very much that members require
testimony to understand that a harsher sentence may have a greater impact on general deterrence.
16
Such an intuitive conclusion renders the probative value of this testimony slight, and when the
testimony comes from the commanding officer, the threat of unlawful command influence
generates a substantial risk of unfair prejudice. For this reason, military judges are wise to
balance carefully the adverse testimony of an appellant’s seniors. See United States v. Gordon,
31 M.J. 30 (C.M.A. 1990) (holding that using a brigade commander to testify about impact of
negligent homicide on unit was improper sentencing evidence.); United States v. Sanford, 29
M.J. 413, 415 (C.M.A. 1990) (holding using a battalion commander to testify about impact of
drug abuse was improper. “Though less blatant than other forms of command influence . . . the
practical effect of edifying a court-martial with a commander’s general views can be the same.”);
United States v. Elsinger, 69 M.J. 522, 534 n.12 (Army Ct.Crim.App. 2010) (“[U]sing senior
level commanders as government sentencing witnesses is often problematic.” (Citations
omitted)), aff’d, 70 M.J. 193 (C.A.A.F. 2011). In this case, the commanding officer’s opinion
that a harsh sentence was required clearly ran afoul of MIL. R. EVID. 403.
(2) The Error Materially Prejudiced a Substantial Right
In evaluating prejudice, we note that members sentenced the appellant. While “[t]he
experienced and professional military lawyers who find themselves appointed as trial judges” are
assumed to be able to appropriately consider only relevant material in assessing sentencing, the
same cannot be said for members. United States v. McNutt, 62 M.J. 16, 26 (C.A.A.F. 2005)
(quoting United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) (Crawford, J., concurring in
part and dissenting in part) (additional citation omitted)). Members are less likely to be able to
separate relevant matters and make decisions based solely on admissible evidence. See United
States v. Wingart, 27 M.J. 128, 136 (C.M.A. 1988). Moreover, the members were all junior to
Maj McCutcheon and knew him to be the appellant’s former commanding officer. While rank
and position alone do not support a finding of prejudice, we are mindful of the additional weight
junior members may afford the opinion of an appellant’s commanding officer. We also
recognize that the E-8 member, himself a career recruiter, knew and worked with Maj
McCutcheon, and both were serving in billets subordinate to Col Bowers, whose opinion on the
impact of the appellant’s misconduct was well known. Finally, the trial counsel reminded the
members of Maj McCutcheon’s testimony during sentencing arguments.
When determining whether an error prejudiced the appellant’s sentence, we must
determine if the error “had a prejudicial impact on the process by which the members determined
the appropriate punishment.” United States v. Reyes, 63 M.J. 265, 267 (C.A.A.F. 2006). In this
context, the test for prejudice is whether “the panel might have been ‘substantially swayed’ by
the error during the sentencing process[.]” Id. (citations omitted).
We are satisfied that either the erroneously admitted plan or the commanding officer’s
sentencing testimony, on their own, could have “substantially swayed” the members.39 Combine
the two and we are left convinced it is so -- as reflected in the fact that they adjudged two years
39
While we hold that admitting the plan and Maj McCutcheon’s testimony was error, we do not find that those
errors rise to the level of depriving the appellant of a fair trial. See Banks, 36 M.J. at 171.
17
more confinement than the trial counsel requested. We will take corrective action in our decretal
paragraph. 40
5. Speedy Post-Trial Processing
Finally, the appellant claims that he was denied his right to speedy post-trial review. He
was sentenced on 14 March 2014. Thereafter, the following dates and events are relevant:
-On 23 June 2014, less than 120 days later, the Convening Authority initially acted;
-On 2 July 2014, the case was docketed with this court;
-On 20 August 2014, in response to the appellant’s request for new post-trial processing, this
court ordered the production of documents;
-On 28 August 2014, the documents were received;
-On 3 September 2014, the appellant’s motion for new post-trial processing was denied and the
appellant’s motion to attach documents was granted;
-On 5 January 2015, after the appellant had been granted five enlargements of time, his Brief was
submitted;
-On 5 May 2015, following three Government enlargements of time with the appellant’s
consenting to the first two, the Government’s file its Answer;
-On 10 June 2015, after requesting two enlargements of time, the appellant filed his Reply Brief;
-On 24 June 2015, after consideration of the parties’ full briefs, this court set aside the convening
authority’s action and remanded the case for new post-trial processing in order to afford the
appellant the full opportunity to submit clemency matters;
-On 27 July 2015, a new SJAR was served on the appellant’s counsel;
-On 26 August 2015, after requesting an extension of time to submit clemency matters, the
appellant provided clemency matters, wherein he requested speedy post-trial review;
-On 11 September 2015, the Convening Authority took action on the case once again;
-On 5 October 2015, the case was re-docketed at this court;
-On 4 November 2015, the appellant filed a Supplemental Brief assigning a total of 13 errors;
-on 27 January 2016, after two enlargements of time, both of which the appellant opposed, the
Government filed its Supplemental Answer;
-On 29 January 2016, the appellant filed a motion for oral argument;
-On 24 February 2016, oral arguments were heard;
-On 12 April 2016, this opinion was issued.
Convicted service members “have a due process right to timely review and appeal of
courts-martial convictions.” United States v. Merritt, 72 M.J. 483, 489 (C.A.A.F. 2013) (internal
quotation marks and citation omitted). We review claims that this right was violated de novo.
United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). “In analyzing whether appellate
delay has violated the due process rights of an accused we first look at whether the delay in
question is facially unreasonable.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006)
(citation omitted).
40
The appellant also argues that these actions amounted to unlawful command influence by bringing “the messaging
related to the Heritage Tour into the courtroom and into [the appellant’s] trial.” However, the record contains no
information indicating that any of the members were present or aware of the former Commandant’s “Heritage Brief”
or the statements he made therein. Without such evidence, this argument (AOE 10) is without merit.
18
If the delay is facially unreasonable, then we balance the four factors set forth in Barker
v. Wingo, 407 U.S. 514, 530 (1972), which include: (1) the length of the delay; (2) the reasons
for the delay; (3) the appellant's assertion of the right to timely review and appeal; and (4)
prejudice. See Moreno, 63 M.J. at 135-36. In balancing the four factors, no single factor is
required to find that post-trial delay constitutes a due process violation. Id. at 136. If we
conclude that an appellant has been denied the due process right to speedy post-trial review and
appeal, “we grant relief unless we are convinced beyond a reasonable doubt that the
constitutional error is harmless.” Allison, 63 M.J. at 370 (internal quotation marks and citation
omitted). Whether an appellant has been denied the due process right to a speedy post-trial
review and whether constitutional error is harmless beyond a reasonable doubt are reviewed de
novo. Id.
In some cases it may be appropriate to assume error and “proceed[] directly to the
conclusion that any error was harmless [beyond a reasonable doubt].” Id. Here, we will assume
the delay of nearly 24 months to complete appellate review denied the appellant his right to a
speedy review and turn to the question of whether any error was harmless beyond a reasonable
doubt.
Initially we address the appellant’s specific allegations of prejudice. The first is that the
CA, with whom he “previously negotiated and who was willing to approve a pretrial agreement
with terms more favorable,” had transferred by the time the appellant submitted clemency,
arguably depriving him of the CA more disposed to grant clemency. As a related matter, the
appellant also asserts the new CA could not have reviewed the entire record of trial before
acting.
These arguments assume too much. Even without a change of command, there is no
certainty of the CA with whom he had negotiated being the one to consider his clemency
material. Convening authorities travel for various reasons, leaving acting commanders to carry
on the business of the command or other convening authorities to act on all of the unit’s courts-
martial. The notion that his clemency appeal would have resulted in more favorable treatment
from his original CA is mere speculation. To infer that a CA willing to limit approved
punishment in exchange for a guilty plea would necessarily approve that same limit after the
appellant exercised his right to a contested trial is illogical. Finally, we find no merit in the
appellant’s complaint that the CA failed to sufficiently familiarize himself with the record of
trial. Such conjecture does not overcome the “presumption of regularity” that we apply to a
Convening Authority’s actions. United States v. Parker, 71 M.J. 594, 626 (N.M.Ct.Crim. App.
2012) (citations omitted).
Next, the appellant claims that he was prejudiced by incurring total forfeitures and is thus
unable to afford his choice of counsel should this court grant relief. Even were we to find merit
in such a claim, the relief to be provided by this court would not require a rehearing.
Finally, the appellant argues that any delay here is so egregious that “tolerating it would
adversely affect the public’s perception of the fairness and integrity of the military justice
system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). In considering the totality
19
of the circumstances, the entire record, and the fact that the relief we provide will not result in a
rehearing, we conclude that any error was harmless beyond a reasonable doubt.
Conclusion
Specifications 1, 5, and 6 of Charge III are consolidated into a single specification as set
forth supra. The finding as to the consolidated specification and the remaining approved
findings are affirmed. However, relief is warranted in light of the unreasonably multiplied
specifications of Charge III and the erroneously admitted evidence considered on sentencing.
Adhering to the principles set forth by our superior court in United States v. Sales, 22 M.J. 305
(C.A.A.F. 1986) and United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), we are
confident we can reassess the appellant’s sentence to obviate the impact of these errors. United
States v. Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006). Accordingly, we affirm only so much of the
sentence that includes total forfeitures, reduction to pay grade E-1, confinement for five years,
and a dishonorable discharge.
Senior Judge FISCHER and Judge CAMPBELL concur.
For the Court
R.H. TROIDL
Clerk of Court
20
APPENDIX A
1. THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN, OVER DEFENSE
OBJECTION, HE ADMITTED ON THE MERITS “OPERATION RESTORE VIGILANCE,” A
CAMPAIGN PLAN TO “FULLY OPERATIONALIZE THE COMMANDANT’S GUIDANCE”
FROM THE HERITAGE TOUR; A PHOTO OF THE COMMANDANT POSING WITH AN
ACCUSER’S GRANDFATHER AS SENTENCING EVIDENCE; AND THEN ALLOWED
APPELLANT’S COMMANDING OFFICER TO TESTIFY THAT IT WAS IMPORTANT
FOR THE MEMBERS TO ADJUDGE A HARSH SENTENCE IN THIS CASE.
2. THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ALLOWED A
WITNESS TO TESTIFY THAT THE APPELLANT OBSTRUCTED JUSTICE, WHICH WAS
UNCHARGED MISCONDUCT AND SO IN VIOLATION OF MILITARY RULE OF
EVIDENCE 404(b), AND THEN INSTRUCTED THE MEMBERS, OVER DEFENSE
OBJECTION, THAT THEY COULD USE THIS EVIDENCE TO DETERMINE THAT HE
OBSTRUCTED JUSTICE IN THE FOUR CHARGED INSTANCES. 41
3. THE APPELLANT WAS DENIED THE RIGHT TO SUBMIT CLEMENCY MATTERS TO
THE CONVENING AUTHORITY.42
4. DISJUNCTIVE PLEADING IS IMPROPER BECAUSE IT CREATES AMBIGUITY AND
MAY FAIL TO INFORM AN ACCUSED OF WHAT HE MUST DEFEND AGAINST. HERE,
THE GOVERNMENT CHARGED 18 SPECIFICATIONS WITH ALTERNATE THEORIES
OF LIABILITY, ALL PLEADED DISJUNCTIVELY TO CREATE 65 POSSIBLE THEORIES
OF LIABILITY. THE MEMBERS’ GENERAL VERDICT OF GUILT WITHOUT
EXCEPTIONS OR SUBSTITUTIONS CREATED AN AMBIGUOUS VERDICT THAT
PREVENTS THIS COURT FROM REVIEWING THIS CASE FOR FACTUAL
SUFFICIENCY.43
5. THE GOVERNMENT MUST PROVE EACH ELEMENT OF AN OFFENSE BEYOND A
REASONABLE DOUBT. HERE, THE GOVERNMENT FAILED TO SATISFY EACH
ELEMENT OF OBSTRUCTING JUSTICE RENDERING THIS CONVICTION LEGALLY
AND FACTUALLY INSUFFICIENT.
6. OBSTRUCTING JUSTICE REQUIRES THE ELEMENT OF SPECIFIC INTENT TO
INFLUENCE, IMPEDE, OR OTHERWISE OBSTRUCT THE DUE ADMINISTRATION OF
JUSTICE, YET THIS ELEMENT WAS NOT ALLEGED. THEREFORE THE
SPECIFICATIONS ALLEGING OBSTRUCTION OF JUSTICE DO NOT STATE AN
OFFENSE.
41
AOEs 2 and 6 were considered and are without merit. United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992).
42
AOE 3 was resolved when the court ordered new post-trial processing.
43
AOE 4 has been reviewed and is without merit. United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992). See
United States v. Brown, 65 M.J. 356, 359-60 (C.A.A.F. 2007) (quoting United States v. Vidal, 23 M.J. 319, 325
(C.M.A. 1987)); United States v. Miles, 71 M.J. 671, 673 (N.M.Ct.Crim.App. 2012).
21
7. WHAT IS SUBSTANTIALLY ONE TRANSACTION SHOULD NOT BE MADE THE
BASIS FOR AN UNREASONABLE MULTIPLICATION OF CHARGES. THE
GOVERNMENT CHARGED STAFF SERGEANT CHIKAKA WITH THREE
SPECIFICATIONS OF OBSTRUCTION OF JUSTICE FOR SENDING ONE TEXT
MESSAGE AND WITH FIVE OFFENSES FOR ONE INAPPROPRIATE RELATIONSHIP
WITH ONE RECRUIT APPLICANT. THIS CHARGING SCHEME AMOUNTS TO AN
UNREASONABLE MULTIPLICATION OF CHARGES.
8. DUE PROCESS REQUIRES SPEEDY POST-TRIAL PROCESSING OF AN
APPELLANT’S CASE. HERE, THE GOVERNMENT FAILED TO MEET THE
ESTABLISHED STANDARDS FOR TIMELINESS AND COMPLETENESS IN POST-TRIAL
PROCESSING AND SO VIOLATED SSGT CHIKAKA’S RIGHT TO DUE PROCESS.
9. EQUAL PROTECTION REQUIRES THE LAW TO TREAT SIMILARLY-SITUATED
PEOPLE ALIKE. ARTICLE 134, UCMJ, ADULTERY DISPARATELY TREATS
HETEROSEXUALS AND HOMOSEXUALS IN TWO WAYS: (1) IT APPLIES ONLY TO
HETEROSEXUALS BY REQUIRING SEXUAL INTERCOURSE FOR CRIMINAL
LIABILITY AND PUNISHMENT; (2) IT DENIES HOMOSEXUALS THE SAME
MARRIAGE-FOSTERING ENFORCEMENT OF FIDELITY AFFORDED
HETEROSEXUALS. THEREFORE HIS CONVICTION SHOULD BE SET ASIDE.44
10. ARTICLE 37(a), UCMJ, PROHIBITS UNLAWFUL COMMAND INFLUENCE OVER A
COURT-MARTIAL. HERE, THE TRIAL COUNSEL ENTERED INTO EVIDENCE
“OPERATION RESTORE VIGILANCE,” A CAMPAIGN PLAN TO “FULLY
OPERATIONALIZE THE COMMANDANT’S GUIDANCE” FROM THE HERITAGE TOUR;
A PHOTO OF THE COMMANDANT POSING WITH AN ACCUSER’S GRANDFATHER;
AND SOLICITED TESTIMONY FROM APPELLANT’S COMMANDING OFFICER THAT
IT WAS IMPORTANT FOR THE MEMBERS TO ADJUDGE A HARSH SENTENCE IN
THIS CASE, THEREBY INSERTING UNLAWFUL COMMAND INFLUENCE INTO THE
TRIAL.
11. THE MILITARY JUDGE ABUSED HIS DISCRETION IN FAILING TO SUPPRESS
TESTIMONY CONCERNING THE CONTENTS OF TEXT MESSAGES WHEN THE
GOVERNMENT FAILED TO PRESERVE EVIDENCE OF THE MESSAGES
THEMSELVES, AND THE MESSAGES WERE LOST OR DESTROYED BY THE
COMPLAINING WITNESSES BEFORE THE TRIAL COURT COULD COMPEL THEIR
DISCOVERY.45
12. JOINDER OF ADDITIONAL CHARGES POST ARRAIGNMENT IS PERMISSIBLE
ONLY WITH THE CONSENT OF THE ACCUSED. HERE, APPELLANT OBJECTED TO
JOINDER OF ADDITIONAL CHARGES. THE CONVENING AUTHORITY THEN
44
AOE 9 was considered and is without merit in light of this court’s recent holding in United States v. Hackler, __
M.J. __, No. 201400414 (N.M.Ct.Crim.App. 17 Mar 2016).
45
AOEs 11, 12, and 13, raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), have been
considered and are without merit. Clifton, 35 M.J. at 81.
22
WITHDREW AND DISMISSED THE PENDING CHARGES SIMPLY TO RE-PREFER AND
RE-REFER TOGETHER WITH THE CHARGES FOR WHICH THE GOVERNMENT
SOUGHT JOINDER, WHICH IS IMPROPER UNDER R.C.M. 604(b).
13. THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO GRANT AN
ADDITIONAL DEFENSE-REQUESTED CONTINUANCE IN ORDER TO ALLOW
FACEBOOK ADDITIONAL TIME TO COMPLY WITH OR REFUSE TO COMPLY WITH
THE COURT’S SUBPOENA AND WARRANT OF ATTACHMENT.
23