Officer and enlisted members sitting as a general court-martial convicted Appellant, contrary to his pleas, of sexual assault in violation of Article 120, Uniform Code of Military Justice [UCMJ]. Appellant was also convicted, pursuant to his pleas, of desertion, absence without leave, escape from custody, false official statement, wrongful possession of a controlled substance, and wrongful appropriation in violation of Articles 85, 86, 87a, 107, 112a, and 121 UCMJ, respectively. Appellant asserts three assignments of error [AOE]: (1) the admission of his statement, “I’m going to tap that” implicated Appellant’s substantial right to be presumed innocent under the Due Process Clause of the Fifth Amendment, and but for that error, the outcome of the proceeding would have been different[.]

Prior to trial the Government provided notice under Mil. R. Evid. 404(b) that it intended to offer certain non-hearsay statements of Appellant. Among this evidence was a statement Appellant made earlier in the evening to Machinist’s Mate Third Class [MM3] Charlie (one of the other Sailors present at the hotel), in which Appellant stated that “he was going to have sex ‘regardless’ that night, or that he was ‘going to get some tonight,’ or words to that effect.”8 The Government made clear in its notice that it was not conceding that the statements were covered by 404(b) however, “out of an abundance of caution” it was providing notice.9 The Government’s notice did not specifically contain Appellant’s alleged statements including the words “tap that,” “hit that,” or words that conveyed the same meaning. Appellant subsequently filed a motion to exclude evidence listed in the Government’s motion; however, Appellant’s motion was limited to other unrelated evidence in the Government’s notice pertaining to an alleged violation of a protective order. The Government ultimately elected not to introduce that evidence. Appellant’s motion to exclude did not include Appellant’s alleged statements “he was going to have sex ‘regardless’ that night” or, that he was “going to get some tonight.” 

At trial, the Government questioned MM3 Charlie about Appellant’s statements to him on the evening of the incident.

     TC: Did [Appellant] say anything about what his intentions were that night? MM3: Yeah, somewhat.
     TC: What did he say? MM3: That he was trying to get with them.
    TC: Okay. Do you remember him saying that he was going to get some that night? MM3: Yeah.

At no point did trial defense counsel object. Additionally, the Government questioned AR Delta about her interactions with Appellant on the evening of the incident. AR Delta testified that on meeting Appellant at the hotel for the first time, Appellant stated, “[O]h, damn, I’m going to hit that tonight,” referring to AR Delta’s body.11 AR Delta testified that Appellant told her “he was going to tap that” (or words to that effect) later  in the evening, again referencing AR Delta. Trial defense counsel did not object to the line of questioning regarding these statements.

​After referral of charges and shortly before trial was set to begin, the trial defense counsel for Appellee moved to dismiss two of the five specifications alleging sexual abuse of a child for defective preferral and discovery violations. Trial defense counsel argued that, at the time of preferral, Charge II, Specification 2 alleged “excessively inflammatory” language that was not supported by evidence. Trial defense counsel further argued that, at the time of preferral, Charge II, Specification 4 was not supported by the evidence reviewed by the accuser. Finally, the trial defense counsel argued that after preferral and during the months leading up to trial, the Government violated its discovery obligations.

The Motion to Dismiss was litigated at an Article 39(a) session. At the conclusion of the hearing the military judge made an oral ruling dismissing Specification 2 with prejudice and dismissing Specification 4 without prejudice. During the hearing the military judge told the parties that he intended to supplement his oral ruling with a written ruling. In his oral ruling, the military judge determined that with regard to Specification 2, in addition to not being supported by the evidence, the trial counsel violated discovery obligations under Military Rule of Evidence [Mil. R. Evid.] 304(d) and Rule for Courts-Martial [R.C.M.] 701 by making late disclosures to the defense. This included the fact that the trial counsel did not interview the named victim in the specification until shortly before trial. 

​Subsequent to entering into a pretrial agreement, Appellant filed a motion for the military judge to recuse himself. Appellant argued there was an appearance of bias because the continuances, and joinder of an additional charge for misconduct during the trial, adversely affected the military judge and his docket. The military judge invited written pleadings, and, in the hearing on the motion, allowed Appellant to voir dire him. Through this questioning, the military judge explained that during sentencing he would consider only the evidence properly admitted, that he harbored no animus towards Appellant, and this would be no different from any other time when he had to compartmentalize information while presiding over courts-martial. The military judge also informed counsel that neither the scheduling complications for the case nor the length of the court-martial caused him any personal problems. Following the military judge’s denial of the recusal motion, Appellant pleaded guilty, and elected trial by military judge alone, after being advised that the same military judge that he requested recuse himself would be his sentencing authority. The parties agreed that Appellant’s guilty plea did not waive the recusal motion on appeal.

(1) the sentence limitation portion of the plea agreement contained impermissible limitations under a plain reading of R.C.M. 705(d) and should not have been accepted.

(2) the plea agreement contained a prohibited and unenforceable provision requiring the military judge to award a specific sentence, violating public policy.

Consistent with our recent opinion in United States v. Rivero, we find that Appellant’s assignments of error lack merit. As in Rivero, “Appellant negotiated the provisions of his plea agreement in accordance with R.C.M. 705(d)(1) and enjoyed complete sentencing proceedings as required by R.C.M. 1001 and 1002. Accordingly, we find the presence and effect of the sentence limitation provision in this case accorded with the President’s statement of public policy.” Because we find “that Appellant did receive complete presentencing proceedings, that his plea agreement’s punishment limitations did not render those proceedings meaningless, and that the terms of his plea agreement did not violate public policy, we find [these AOEs] to be without merit.”

​82 M.J. 629 (N-M. Ct. Crim. App. 2022) (finding that specific sentence limitations within a plea agreement do not violate the Rules for Courts-Martial or public policy), review granted, __ M.J. __, 2022 CAAF LEXIS 484 (C.A.A.F., July 11, 2022).

Appellant argues that the 2019 amendment to Article 37, UCMJ, eliminated apparent UCI as a basis for appellate relief. Effective 20 December 2019, the relevant new language in Article 37 states: “No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section [i.e., UCI] unless the vi olation materially prejudices the substantial rights of the accused.”We need not address whether the issue before this court involves a “finding or sentence of a court-martial,” as we find that, even if apparent UCI is still a viable basis for relief, there was no apparent UCI here. 
. . . 
​We expect that “an objective, disinterested observer” will likely find Col Sierra’s comments to Capt Tango highly disturbing. They were as shocking as they were incorrect. But it is that very demonstrable (and demonstrated) incorrectness that saves these proceedings from the appearance of UCI. The “facts and circumstances” in the present case include the evidence the Government provided to show that Col Sierra’s comments were patently untrue, as well as that Capt Tango had been selected for highly valued professional military training. If such an observer is “fully informed” of this evidence, any doubt as to the fairness of the proceeding becomes both unlikely and unreasonable. Thus, we conclude the military judge clearly erred in finding apparent UCI.

​The military judge ruled that Appellee’s loss of his IMC and ADC, both of whom had been on the case for over a year, demonstrated that the Government had not disproven any prejudicial effect of the alleged UCI. We disagree.

​(1) Appellant’s commanding officer recommended nonjudicial punishment [NJP] after the State of Florida declined to prosecute Appellant; (2) the trial counsel then scheduled a meeting with the immediate superior in command [ISIC] accusing Appellant of attempted murder; and (3) the ISIC stated that while he had no plan to court-martial Appellant, the meeting made him believe the Navy had already made the decision that the case was going to court-martial.

[T]he Commodore states in the declaration (1) that he became aware of Appellant’s case while he was the Deputy Commodore; (2) that around the time NJP was recommended, members of Region Legal Service Office [RLSO] Northwest scheduled to meet with him; (3) that during the meeting, the RLSO trial counsel advocated in favor of prosecuting Appellant at court-martial and presented the Commodore with draft charges, which included attempted murder; (4) that prior to the meeting he did not believe Appellant’s case rose to the level of attempted murder and would not have recommended that the case proceed to an Article 32 hearing; (5) that the meeting left him feeling that the Navy had already made the decision that the case was going to court-martial; (6) that after the meeting he adopted the position that the legal process would play out and would provide an opportunity to clarify the matter; and (7) that he reached his decision to recommend an Article 32 hearing on his own and was not coerced by anyone to do so. 

 Appellant claims that had he been better informed about the MJA 16 sentencing procedures election, he would not have agreed to an MJA 16 plea agreement even if it would have meant settling for a PTA with a higher possible sentence limitation. He asserts that the outcome would have been different had he elected pre-MJA 16 sentencing procedures because he could have fared better in sentencing. 

There is nothing in the record to indicate that but for his counsels’ alleged error, Appellant would not have pleaded guilty and would have insisted on going to trial.
​. . . 
​Finally, in focusing narrowly on his own desires in the plea negotiations, Appellant overlooks that there was another party involved in the negotiations—the convening authority. On the one hand, Appellant’s main concerns were to minimize confinement and to preserve his retirement eligibility. On the other hand, the convening authority desired a minimal term of confinement and no protection from a punitive discharge. Hired with the primary goal of successfully negotiating a plea agreement, and reminded that the former CDC had been fired for his inability to secure one, Appellant’s CDC sought the most favorable terms in the back-and-forth negotiations with the convening authority. Recognizing the futility of attempting to convince the convening authority to protect Appellant from a punitive discharge, CDC leveraged the dishonorable discharge term to reduce Appellant’s exposure to confinement. Negotiating the confinement cap became a key issue for the parties. Appellant’s initial proposed plea agreement offered 60 days of confinement with a confinement cap of 48 months, while the convening authority proposed a cap of 72 months. Ultimately the parties settled on 55 months. Seen in the light of the previous failed plea negotiations, the ultimately successful multi-week plea negotiations, and the convening authority’s own goals, we are convinced that Appellant’s TDC discussed the MJA 16 sentencing procedural framework with him, despite his statements to the contrary.

​Appellant’s offenses were serious and had lasting impacts on the victims. He admitted to having secretly recorded his undressed fellow shipmates over a period of months while they were living in the very close confines of a deployed submarine. Appellant unlawfully made videos capturing at least 40 Sailors—13 of whom were identified by NCIS—which he filed away for personal viewing and maintained for nearly four years until their discovery by law enforcement. Multiple victims testified about the impacts of Appellant’s offenses, describing persistent physical reactions when considering the crime, loss of trust, and feeling “disgusted.”47 Additionally, Appellant admitted to having purchased thousands of images and videos of children engaged in sexual acts, in which over 350 victims were identified by the National Center for Missing and Exploited Children. Appellant sought out and paid for these images and videos, and then kept them for years on multiple electronic devices until they were seized by law enforcement. In mitigation, Appellant presented evidence of his long naval career, acceptance of responsibility, expressions of remorse, and efforts at rehabilitation. Nonetheless, . . .

abuse[] his discretion when he permitted, over Defense objection, the mother of a deceased Sailor to make a victim impact statement when Appellant was not found guilty of an offense relating to the deceased Sailor.

Appellant’s convictions arise out of an incident occurring aboard Naval Station Great Lakes in which a fellow Sailor, Fire Controlman Seaman Recruit [FCSR] Echo,4 died in his barracks room of a drug overdose. An investigation revealed that the day prior to FCSR Echo’s death, he and Appellant traveled to Chicago where they obtained heroin and drug paraphernalia. They used the heroin in Chicago and then returned to the installation where they continued to use the drug. FCSR Echo was found dead by his roommate the following morning. During the investigation, Appellant was interviewed by the Naval Criminal Investigative Service [NCIS] and made false statements regarding the circumstances surrounding FCSR Echo’s death. Appellant was charged with involuntary manslaughter, reckless endangerment, obstructing justice, wrongful interference with an administrative proceeding, wrongful introduction of a controlled substance, violation of a lawful general order, willful disobedience of a superior officer, wrongful drug use, and making false official statements. Before trial, he entered into a pretrial agreement wherein he agreed to plead guilty to wrongful drug use, violating a lawful general order by possessing drug paraphernalia, and making false official statements, in exchange for the convening authority referring his case to a special court-martial.

The circumstances of those offenses involved a joint enterprise between Appellant and FCSR Echo to obtain, purchase, and use heroin together. Appellant bought the drug paraphernalia and provided the needle FCSR Echo used to inject the heroin that ultimately caused his death. As such, we determine that the psychological harm FCSR Echo’s death caused to FCSR Echo’s mother directly arose from the offenses of wrongful drug use and possession of drug paraphernalia of which Appellant was found guilty.

Appellee’s case is before us for a second time. In 2019, a general court-martial consisting of members with enlisted representation convicted Appellee, contrary to his pleas, of attempted rape of a child, rape of a child, and sexual abuse of a child. In 2021, this Court reversed Appellee’s convictions and authorized a retrial owing to implied bias of one of the members.2 In July 2021, the convening authority re-referred the same charges and specifications against Appellee to a general court-martial. The Government now appeals the following issue: Did the military judge abuse his discretion by excluding Appellee’s testimony during his first court-martial due to Government actions in the member selection process where: (a) this Court found the trial counsel’s recitation of voir dire answers was “an honest mistake,” and (b) under Harrison v. United States and United States v. Murray, suppression is only justified where illegal government action directly induced the accused’s testimony? We find that the military judge abused his discretion and reverse his decision.

This general principle is not a bright-line rule, however. Where a defendant’s prior testimony was induced after the prosecution put into evidence confessions or admissions that were illegally obtained, the testimony becomes the fruit of the proverbial poisonous tree and cannot be used against the accused at later proceedings.
. . . 
In the decades since Harrison, some jurisdictions, including our own, have expanded the logic of Harrison to other due process concerns, namely cases in which ineffective assistance of counsel directly results in an accused’s testimony.

As the military judge recognized, the actions of the Government related to the member selection process did not rise to the level of illegal government action, nor did those actions relate in any meaningful way to the legality of Appellee’s admissions to NCIS. While the standard of review may be the same, we are unwilling to equate a military judge’s error in the member selection process with the erroneous admission of evidence illegally obtained by government agents. There are different public policy interests at stake.
. . . 
[The MJ erred
     [because there was no prior testimony] tainted by the illegal actions of government agents.
        [there was a] good-faith mistakes of [the] trial judge.

[Here] the military judge abused his discretion in applying this Court’s decision in Murray to exclude Appellee’s prior testimony. Murray stands for the proposition that the Government should not benefit on rehearing from testimony that was the direct result of the denial of the accused’s right to effective assistance of counsel. We do not construe that decision to authorize the extension of Harrison’s exclusionary rule to an error (vice illegal activity) during the voir dire process.

​United States v. Murray, 52 M.J. 671 (N-M. Ct. Crim. App. 2000).

​Even if reliable evidence were presented that Appellee testified as a result of the inclusion of LT Alpha on the member panel, the military judge abused his discretion in applying this Court’s decision in Murray to exclude Appellee’s prior testimony.

 It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial.

​Here, the military judge found that Major Bravo’s comments during the company meeting did not place an intolerable strain on the public perception of the military justice system. We agree. While it is certainly a commander’s prerogative to conduct climate checks and safety surveys in the wake of sexual misconduct allegations, particularly those occurring in the work environment, the use of pejorative terms like “predator” is both ill-advised and strongly discouraged, as it could be viewed as pre-judging an accused whom the law presumes to be innocent until proven guilty. Even where the subject of the allegations is not referred to by name, it is far too probable that the circulation of rumors will make the accused’s name known for commanders to use language that might reasonably be perceived as publicly condemning an accused while he or she is pending investigation or trial for an alleged offense.

However, . . . 

While we give the military judge’s ruling little deference because he did not articulate his reconsidered Mil. R. Evid. 403 balancing on the record, we find his conclusion under Reynolds’ third prong reasonable. We find the evidence of Appellant’s conduct toward MA3 Madison and MA3 Hotel probative regarding the issues of intent and lack of mistake with respect to his subsequent conduct toward MA3 Mike, particularly in light of the mistake-of-fact instruction pertaining to MA3 Mike that the military judge gave at Defense request. Although the incidents occurred eight months and two years prior, respectively, they involve similar one-on-one conduct by Appellant using his supervisory role to commit repeated, nonconsensual touching of a sexual nature upon isolated, female subordinates despite their protests. As this evidence was already before the members on the charged offenses, it required no additional time to prove at trial, presented no possible distraction to the factfinder, and was the least prejudicial evidence possible under the circumstances. The evidence is also strong, as it is corroborated by Appellant’s admissions that he touched both MA3 Madison and MA3 Hotel on the buttocks because he was attracted to them, and that MA3 Hotel was shocked when he did so.

[the almost rape of] LCDR Card’s mother in 1975 was a non-issue in terms of his ability to serve as a panel member. The military judge noted that he observed no emotional reaction in LCDR Card’s recitation of having learned about his mother’s kidnapping. The military judge further found that LCDR Card’s involvement as a Fleet mentor in the SAPR program was more about finding a way to be involved with students than it was related to the specific content of the program, and that LCDR Card had never been involved in the sexual assault prevention aspects of the program. The military judge also found that LCDR Card affirmatively stated that he would not hold Appellant’s silence against him if he chose not to testify, and that LCDR Card’s statement that something must have happened in order for the court-martial to take place was a literal answer and did not indicate he believed something illegal must have happened.

While we take no issue with a finding that most adults in the United States have a general understanding that alcohol can impair one’s memory, we sharply disagree with the military judge’s additional finding of fact that it could be assumed the members who would sit in judgment of Appellant would, based on either their personal drinking experience or what they had seen in movies, on television, or on social media, have sufficient knowledge in a case such as this, where the complex phenomenon of an alcohol-induced blackout was it issue, to properly evaluate the ultimate issue. Indeed, the military judge’s finding of fact that the members would possess sufficient lay knowledge so as to render expert testimony unnecessary was made in the face of a directly contrary—and unrebutted—assertion by Dr. Sierra[.]
. . . 
In the face of this evidence that undermined the military judge’s finding of fact that members would have a sufficient basis of knowledge in this case to resolve issues concerning the effect of alcohol on memory (and particularly the concept of blackouts) based on personal experience or what they read in the news or watch for entertainment, there is no evidence in the record to support his finding of fact. We add our observation that even if a member generally has experience drinking alcohol, that by no means guarantees that he or she has experience with blackouts, either en bloc or fragmentary. For all of these reasons, we find the military judge’s finding of fact on this issue was clearly erroneous.

Moreover, we find that the military judge abused his discretion with regard to his conclusion of law that Dr. Juliet’s testimony was of “low probative value[.]
. . .
To us, it leaps off the page that there is a significant difference between a person not remembering an event because she was asleep and her not remembering the event because she was awake but not forming long-term memories because she was suffering from the effects of a blackout. In committing this logical error, the military judge disregarded the Defense’s clearly expressed theory that Ms. Foxtrot may have simply forgot being awake (or was unable to access such a memory) and consenting to the charged sexual activity due to a blackout. In doing so, he denied Appellant’s opportunity to fully develop and present that theory to the finder of fact at trial.

Cheers.