Navy-Marine Corps Court of Criminal Appeals

In United States v.Flowers, an "enlisted panel" convicted him of three abusive sexual contacts and sentenced him to a BCD. He raises three issues, none of which bring him relief.

(1) Appellant’s company commander committed apparent unlawful command influence by stating, “there’s a predator in our midst,” in a meeting called specifically to address recent allegations of sexual assault, and the Government failed to prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain upon the public’s perception of the fairness of the military justice system.
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(2) The MJ abused his discretion in admitting evidence of the charged acts to prove Appellant’s absence of mistake and intent to commit the charged acts under Military Rule of Evidence [Mil. R. Evid.] 404(b).

(3) the sentence of a bad-conduct discharge is inappropriately severe.

​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, . . . 

On the Mil. R. Evid. 404(b) issue, the court found admission for that purpose reasonable when the defense raised the issue of lack of intent and mistake.

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.

In United States v. Keago, the appellant was convicted by members of attempted sexual two sexual assault, four  burglarys, and one obstructing justice. He was sentenced to 25 years, TF, and a dismissal. Counsel raised six errors and four were Grosty.

(1) The MJ erred by denying defense counsel’s challenges to three members for actual and implied bias.

(2) Appellant’s convictions for sexual assault and burglary involving Midshipman [MIDN] Sonntag, MIDN Morse, and MIDN Metcalf are legally and factually insufficien.

(3) Appellant’s sentence is inappropriately severe.

(4) The MJ abused his discretion by admitting the testimony under Mil. R. Evid. 404(b).

(5) The MJ abused his discretion by denying Appellant’s motion to dismiss based on failure of law enforcement to prevent the loss of potentially useful evidence.

(6) Appellant, who is African American, was denied due process when the mostly Caucasian venire resulted in his being tried by a panel comprised of Caucasian and Asian members.

The defense had " challenged 14 members of the venire panel for cause. The military judge granted six defense challenges and denied the other eight. Of those eight[.]" Some of the questionable answers include,

• LCDR Card answered affirmatively to questions asking if he wanted to hear from Appellant during the trial and whether Appellant should testify to prove his innocence. When questioned, LCDR Card explained that he took the question literally and answered that he would like to hear from Appellant. However, LCDR Card also explained that he understood that Appellant had no obligation to testify and that, while choosing to remain silent may be “a little self-defeating,”28 he would not hold it against Appellant if the latter did not testify.
• Card also answered in the affirmative on the questionnaire when asked if he believed that the fact that Appellant had been charged with a crime meant there was some truth to the charges. When asked to explain, LCDR Card said that he believed that for charges to reach the trial stage, there must be more than an issue of “he said/she said” or a simple accusation and denial. He further clarified that he was not leaning one way or another regarding Appellant’s guilt, but simply meant that any allegation at trial should be taken seriously. LCDR Card affirmed that he would wait until he had heard all the evidence before determining guilt or innocence.

As to LCDR Card, the court found,

[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.