              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
             K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       LAMONT E. HOYES
         CULINARY SPECIALIST FIRST CLASS (E-6), U.S. NAVY

                           NMCCA 201300303
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 25 January 2013.
Military Judge: CDR Colleen Glaser-Allen, JAGC, USN.
Convening Authority: Commander, Naval Air Force Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CAPT T.J. Welsh,
JAGC, USN.
For Appellant: Maj John Stephens, USMC; LT Jennifer Pike,
JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN; Capt Matthew
M. Harris, USMC; LT Amy Freyermuth, JAGC, USN.

                            20 August 2015

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

HOLIFIELD, Judge.

     A panel of officer and enlisted members sitting as a
general court-martial convicted the appellant, contrary to his
pleas, of conspiring to commit aggravated sexual assault,
violating a lawful general order (fraternization), making false
official statements (two specifications), committing aggravated
sexual assault, and committing wrongful sexual contact in
violation of Articles 81, 92, 107, and 120, Uniform Code of
Military Justice, 10 U.S.C. §§ 881, 892, 907, and 920. 1 The
members sentenced the appellant to confinement for 42 months and
a dishonorable discharge.

      Prior to authentication of the record, the defense filed a
motion with the military judge seeking a new trial pursuant to
RULE FOR COURTS-MARTIAL 1210, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), alleging newly discovered evidence and fraud on the
court-martial. The military judge granted the defense motion
and ordered a new trial. On 31 December 2013, we granted an
appeal by the Government pursuant to Article 62, UCMJ, holding
that the military judge abused her discretion in finding witness
statements to be newly discovered evidence or, in the
alternative, fraud on the court-martial. 2 The court vacated the
ruling of the military judge and returned the record of trial to
the Judge Advocate General for further proceedings not
inconsistent with that opinion. The convening authority (CA)
approved the sentence as adjudged, and, except for the
dishonorable discharge, ordered it executed. Now that post-
trial processing is complete, we review the case under Article
66, UCMJ. 3

     The appellant raises four assignments of error (AOEs):
(1) that a cumulative effect of evidentiary errors allowed the
Government’s primary witness to mislead the members; 4 (2) that
the appellant received ineffective assistance of counsel; (3)
that the charges were unreasonably multiplied; and, (4) that the
CA’s instruction restricting eligibility for court-martial
membership frustrated the appellant’s right to a properly
convened court-martial.


1
  As the offense allegedly occurred on 26 July 2011, the version of Article
120, UCMJ, in effect from 1 Oct 2007 through 27 June 2012 applies.
2
  United States v. Hoyes, No. 201300303, 2013 CCA LEXIS 1075, unpublished op.
(N.M.Ct.Crim.App. 31 Dec 2013), rev. denied, 73 M.J. 264 (C.A.A.F. 2014).
3
  On 4 June 2015, the court released an opinion in which we set aside the
findings and sentence and returned the record of trial to the Judge Advocate
General for remand to an appropriate CA with a rehearing authorized. The
Government filed a Motion for En Banc Reconsideration on 6 July 2015, which
was denied on 29 July 2015. However, by Order dated 29 July 2015, the panel
determined that it would reconsider its 4 June 2015 opinion based on newly
attached documents. The court’s 4 June 2015 opinion is hereby withdrawn and
replaced with this opinion.
4
  While this was the stated AOE, the alleged error involves testimony of
several Government witnesses.
                                      2
      We find merit in the appellant’s third AOE and grant
relief in our decretal paragraph. After carefully considering
the record of trial and the parties’ submissions, we are
convinced that following our corrective action the findings and
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant remains. Arts. 59(a) and 66(c), UCMJ.

                               Background 5

     The appellant was assigned to USS DWIGHT D. EISENHOWER (CVN
69). On 26 July 2011, the ship made a port call to Mayport,
Florida. A number of Sailors from the ship’s supply department,
to include the appellant, Culinary Specialist First Class TG
(TG), Culinary Specialist Seaman SF (SF), Culinary Specialist
Seaman VC (VC), and Culinary Specialist Seaman PV (PV), went
into town on liberty that evening. During the evening, SF and
VC drank to excess in celebration of VC’s 21st birthday. At
some point during the evening, the appellant and VC flirted and
discussed having sexual intercourse later that evening.

     After drinking together in one of the local bars, SF, VC,
PV, TG and the appellant shared a cab back to a local hotel.
Once they arrived, the group, with the exception of SF, went to
VC’s hotel room. SF went to the room across the hall. A short
time later, two other Sailors from the room across the hall
assisted SF into VC’s room and laid her down on the floor, fully
clothed and visibly drunk. She remained there on the floor
while VC and the others continued drinking and socializing.
After a few minutes, VC left the room and went outside the hotel
to give money to a friend for cab fare.

     When she came back to her room, VC saw the appellant and SF
on one of the two beds engaged in sexual intercourse. Soon
after observing this, VC engaged in sexual intercourse and
fellatio with PV on the other bed. The appellant and PV then
switched places and partners. The appellant went over to the
bed where VC lay and engaged in sexual intercourse with her,
while PV went to the bed where SF lay and proceeded to do the
same with her. After these encounters concluded, VC asked SF if



5
  This court described the facts surrounding the charged offenses in great
detail in its 31 December 2013 opinion. Id. at *2-5. They are repeated here
only to the extent necessary to review the specific assignments of error
currently before this court.


                                     3
she was “okay” and “[knew] what’s going on”; SF replied “yes”
and “I just want to go to sleep.” 6

     SF soon fell asleep on one of the beds and VC went to
another room across the hall where she remarked to several
others that she saw the appellant and SF having sex. After a
short while, VC went back to her hotel room where she was met by
the appellant at the door. When VC entered her room, she saw SF
on top of TG in what appeared to be the act of sexual
intercourse. PV was asleep in the other bed. The appellant then
told VC to be quiet and pulled her into the bathroom. There the
two kissed and VC proceeded to perform fellatio on the
appellant. After several minutes, VC stepped out of the
bathroom into the room. SF was asleep on the bed and TG was
pulling on a pair of pants. TG, PV, and the appellant left the
room and VC went to sleep.

     Ultimately, the court-martial found the appellant guilty of
conspiring with TG to commit an aggravated assault, committing
an aggravated sexual assault on SF, and committing wrongful
sexual contact against SF, as well as the false official
statement and fraternization charges noted above.

     Additional facts necessary to address the assignments of
error are provided below.

                        Cumulative Error

     The appellant first claims that the cumulative effect of
three errors led the members to wrongfully convict the
appellant. These alleged errors are that the military judge
erroneously: (1) allowed the trial counsel to lead her own
witness on key testimony and improperly refresh that witness’
memory; (2) permitted the Government’s expert to inaccurately
define “incapacity;” and (3) admitted two in-court
identifications by witnesses lacking sufficient bases to do so.

     The cumulative effect of all errors, plain or preserved, is
reviewed de novo. United States v. Pope, 69 M.J. 328, 335
(C.A.A.F. 2011). Under the cumulative-error doctrine,
reversible error may exist when “‘a number of errors, no one
perhaps sufficient to merit reversal, in combination necessitate
the disapproval of a finding.’” Id. (quoting United States v.
Banks, 36 M.J. 150, 170-71 (C.M.A. 1992). We will reverse only
if we find the cumulative errors denied appellant a fair trial.

6
    Record at 492-93.
                                4
Id. We start by analyzing each alleged error in turn, noting
that we review a military judge’s evidentiary rulings for an
abuse of discretion, that is, whether the “challenged action
[is] arbitrary, fanciful, clearly unreasonable, or clearly
erroneous.” United States v. Solomon, 72 M.J. 176, 179
(C.A.A.F. 2013) (citation and internal quotation marks omitted).
1. VC’s Testimony

      “Leading questions should not be used on the direct
examination of a witness except as may be necessary to develop
the testimony of the witness.” MILITARY RULE OF EVIDENCE 611(c),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). A review of VC’s
direct examination reveals a significant number of leading
questions by the trial counsel. However, this review also shows
the great majority of these leading questions to be on minor
issues, while VC’s testimony on key points came in response to
non-leading questions. When trial defense counsel objected to
the use of leading questions, the military judge properly
sustained the objection. 7 Later in the examination, the military
judge sua sponte reminded the trial counsel that she was
conducting direct examination. 8 Also, when the defense objected
to the Government’s improper attempt to refresh VC’s memory, the
military judge sustained the objection and admonished the trial
counsel to move on. 9 Taken as a whole, we conclude the military
judge maintained proper control over the elicitation of
testimony, and did not abuse her discretion in allowing, in the
absence of objection, admission of those statements SF provided
in response to leading questions.

2. Expert testimony

     In response to the trial counsel’s question regarding the
effects of alcohol on cognitive function, the Government’s
psychiatric expert testified as follows:

        [I]t’s a sliding scale, from somebody who’s not
        drinking alcohol or has had a few drinks where they’re
        functioning, essentially, like they normally would
        function. They can go ahead and operate a car. . . .
        All the way through to where we know somebody’s
        impaired because they can’t even stand up, they’re
        intoxicated to the level they can’t even function.

7
    Record at 489.
8
    Id. at 536.
9
    Id. at 541.
                                   5
        And these are the chronic alcoholics who, after 10
        DUI’s, they go and get out their keys and get in the
        car and drive. They’re not taking in all the
        information they need to make a wise choice. They’re
        not making decisions that you and I would. And they
        would probably think, in the light of day, that that
        would [sic] be a good choice because police and jail
        are bad. But they still make these uninformed choices
        and this is because the information they’re bringing
        in, they’re not processing all the, weighing all the
        truths and cons, okay, all the goods and bads of their
        decisions. They may be willing to make a choice, but
        they’re not able to make an informed decision, and
        therefore they’re not able to make valid choices
        whenever they’re at a level of intoxication that would
        impair bringing in and weighing all the balanced
        choices. 10

The appellant claims this testimony, combined with the expert’s
later estimation of SF’s blood-alcohol level at the time of the
assault, amounted to “an incorrect legal definition of
‘substantial incapacitation.’” 11 We disagree.

     First, we do not interpret the expert’s testimony to be an
attempt to define “substantial incapacitation.” Rather, the
expert was merely describing the effects of alcohol on the
decision-making process, and providing the members a reasonable
approximation of the victim’s level of intoxication. This
testimony in no way contradicted the military judge’s
instructions, wherein she defined “substantial incapacitation”
as:

        that level of mental impairment due to the consumption
        of alcohol, drugs, or similar substance, while asleep
        or unconscious, or for other reasons which render the
        alleged victim unable to appraise the nature of the
        sexual conduct at issue, unable to physically
        communicate unwillingness to engage in the sexual
        conduct at issue, or otherwise unable to make or
        communicate competent decisions. 12

10
     Id. at 644-45.
11
     Appellant’s Brief of 20 Jan 2015 at 19.
12
  Record at 768. The military judge reinforced this language regarding
substantial incapacitation when instructing the members as to consent. Id.
at 768-69 and 772.
                                         6
     “Absent evidence to the contrary, the members are presumed
to follow the military judge’s instructions.” United States v.
Ashby, 68 M.J. 108, 123 (C.A.A.F. 2009) (citing United States v.
Jenkins, 54 M.J. 12, 20 (C.A.A.F. 2000)). We find nothing in
the record to undermine this presumption. The expert did not
provide an erroneous definition, and the trial counsel, when
discussing substantial incapacitation during closing argument,
made no mention of the expert. In fact, the trial counsel
specifically referenced the judge’s instructions. 13

3. In-court identification

     The appellant further claims that the in-court
identification of the appellant by two witnesses was based on
hearsay, and not personal knowledge. We find this claim to be
without merit. The record indicates the first witness
personally saw the appellant in the room on the night in
question and later recognized the appellant in uniform and read
his name tape. The second witness, under cross-examination,
admitted that her identification of the appellant was not based
on her having recognized the appellant in the room, and that she
only knew his name because VC told her. She also testified on
re-direct that she did not “get a good look at his face” that
night. 14 Given this evisceration of the second witness’
identification, we cannot believe it played any role in the
member’s verdict.

     As we find none of these issues alone constitutes error, we
certainly do not find their combined effect denied the appellant
a fair trial.

                   Ineffective Assistance of Counsel

     The appellant alleges that the trial defense team was
ineffective in its representation at court-martial by failing to
offer evidence of SF’s motive to fabricate or to impeach her
with evidence that she sought out the appellant on numerous
occasions after making the allegations against him.

     The Sixth Amendment entitles criminal defendants to
representation that does not fall “below an objective standard
of reasonableness” in light of “prevailing professional norms.”
Strickland v. Washington, 466 U.S. 668, 688 (1984). The Court
of Appeals for the Armed Forces (CAAF) has applied this standard
13
     Id. at 790.
14
     Id. at 592.
                                   7
to military courts-martial, noting that “[i]n order to prevail
on a claim of ineffective assistance of counsel, an appellant
must demonstrate both (1) that his counsel’s performance was
deficient, and (2) that this deficiency resulted in prejudice.”
United States v. Green, 68 M.J 360, 361 (C.A.A.F. 2010)
(citations omitted). In order to show prejudice under
Strickland, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at
694.

     Counsel are presumed to be competent. United States v.
Cronic, 466 U.S. 648, 658 (1984). Therefore, our inquiry into
an attorney’s representation must be “highly deferential” to the
attorney’s performance and employ “a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. The
appellant has the heavy burden of establishing a factual
foundation for a claim of ineffective representation. United
States v. Grigoruk, 52 M.J. 312, 315 (C.A.A.F. 2000). Strategic
or tactical decisions made by a trial defense counsel will not
be second-guessed on appeal unless the appellant shows specific
defects in counsel’s performance that were unreasonable under
prevailing professional norms. United States v. Mazza, 67 M.J.
470, 475 (C.A.A.F. 2009). The appellant’s burden of proof
requires that he provide a specific, particularized statement of
the errors or deficient performance alleged and that he support
his claim by evidence and facts. Bare allegations based on
speculation, conjecture, and conclusory comments will not
suffice. United States v. Jones, 39 M.J. 815, 818 (A.C.M.R.
1994).

     The CAAF has applied a three-prong test to determine if the
presumption of competence has been overcome:

      (1) Are the allegations true; if so, “is there a
     reasonable explanation for counsel's actions[?]”

     (2) If the allegations are true, did defense counsel’s
     level of advocacy fall “measurably below the
     performance ordinarily expected of fallible lawyers?”

     (3) If defense counsel was ineffective, is there a
     “reasonable probability that, absent the errors,”
     there would have been a different result?

                                8
United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991) (citations
and internal punctuation omitted). The court “looks at the
questions of deficient performance and prejudice de novo.”
United States v. Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008)
(citations omitted).

     The appellant claims his trial defense counsel should have
used the fact that SF was in a romantic relationship with, and
living with, another woman to show that SF had a motive to lie
regarding her sexual activity with the appellant. The trial
defense counsel was aware of these facts, and had requested the
girlfriend’s presence at trial. However, the appellant’s
defense counsel neither called her as a witness nor sought to
question SF on the relationship. The extensive colloquy between
the military judge and the trial defense counsel makes clear
that the defense team fully examined the possibility of
impeaching SF with this romantic relationship, and chose not to
do so. 15 We will not second-guess what was obviously a
thoroughly-considered strategic decision not to pursue this line
of inquiry.

     Whether there is merit in the appellant’s second allegation
of deficient counsel performance is less clear. The appellant
claims that SF, despite having been issued an order to stay away
from the appellant, continued to seek out the appellant after
making the allegations against him. The appellant claims this
behavior did not stop until after he reported it several times
to his chain of command. We do not know why the trial defense
counsel did not seek to impeach SF with her post-allegation
behavior. We need not, however, determine whether the lack of
impeachment on this point was error. “‘[A] court need not
determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant. . . . If it
is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.’” United States v. Datavs,
71 M.J. 420, 424-25 (C.A.A.F. 2012) (quoting Strickland, 466
U.S. at 697).

      As the Government’s theory was that SF was substantially

15
   During this exchange the military judge specifically asked whether there
was some “implication here that somehow the girlfriend was jealous, [and]
there’s a motive to lie or something?” Record at 19. The trial defense
counsel responded, “It’s not, we are not going to attempt to use that at
trial, Your Honor.” Id. at 20.


                                      9
incapacitated and unable to remember the alleged assaults, it
necessarily built its case not around SF’s testimony, but on the
testimony of the numerous other witnesses present that night. 16
Any post-allegation behavior on SF’s part does nothing to
undercut the testimony of these other witnesses. SF’s
credibility simply was not an important piece of the
Government’s case. 17 Accordingly, we find that there is no
reasonable probability that, had the trial defense counsel
sought to impeach SF with her post-allegation conduct – or with
her romantic relationship, for that matter - the outcome of the
trial would have been different.

                Unreasonable Multiplication of Charges

     In his next assignment of error, the appellant avers that
the wrongful sexual contact and aggravated sexual assault
specifications under Charge IV constitute an unreasonable
multiplication of charges. He further avers that the two
specifications under Charge III alleging the making of false
official statements represent a similar unreasonable
multiplication. We agree and conclude that the appellant should
not stand convicted of all the specifications under Charges III
and IV.

     The prohibition against unreasonable multiplication of
charges allows this court to address prosecutorial overreaching
by imposing a standard of reasonableness. United States v.
Paxton, 64 M.J. 484, 490 (C.A.A.F. 2007); United States v.
Roderick, 62 M.J. 425, 433 (C.A.A.F. 2006). In addressing
whether the Government has unreasonably multiplied charges, we
apply a five-part test: (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? United States v. Quiroz, 55 M.J. 334, 338
(C.A.A.F. 2001). When conducting a Quiroz analysis, we are
16
  SF testified she did not remember anything between being at a local bar and
waking the next morning to several witnesses telling her about the previous
evening’s events. She provided no testimony regarding what happened at the
hotel on the night in question. Record at 607-08.
17
  Although SF’s credibility was not central to the Government’s case, the
trial defense counsel did put on evidence of SF’s character for
untruthfulness. Id. at 726, 735, and 740. The Government offered no
evidence to rebut this.
                                     10
mindful that “[w]hat is substantially one transaction should not
be made the basis for an unreasonable multiplication of charges
against one person.” RULE FOR COURTS-MARTIAL 307(c)(4), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.). Furthermore, “when a
‘panel return[s] guilty findings for [multiple] specifications
and it was agreed that these specifications were charged for
exigencies of proof, it [is] incumbent' [upon the military
judge] either to consolidate or dismiss [the contingent]
specification[s],’ not merely merge them for sentencing
purposes.” United States v. Thomas, 74 M.J. 563, 568
(N.M.Ct.Crim.App. 2014) (quoting United States v. Elespuru, 73
M.J. 326, 329-30 (C.A.A.F. 2014) (additional citation omitted)).

     Given the facts of this case, our analysis of the Quiroz
factors may be abbreviated for these charges. While trial
defense counsel did not object to the members considering both
specifications under Charge III, the record is clear – and the
Government concedes – the two statements were made during a
single interview with agents of the Naval Criminal Investigative
Service (NCIS), in response to questions aimed at a single
course of action. First, the appellant allegedly told NCIS he
“did not have sex with [SF] that night.” 18 He then denied having
“entered any of the hotel rooms except [his] own at the Best
Western” that night. 19 The Government concedes that the two
specifications were charged to address contingencies of proof,
and should be consolidated. We agree with the appellant that
these specifications represent an unreasonable multiplication of
charges, and will consolidate the two specifications in our
decretal paragraph.

     At trial, the appellant objected to having the members
consider both specifications under Charge IV. The Government,
conceding that the two specifications were pleaded in the
alternative to account for contingencies of proof, agreed that,
“if [the members] convict on both, then certainly one could be
dismissed by the judge, before sentencing.” 20 The military judge
then stated he would consider instructing the members that they
could “choose to acquit on both, and they can choose to convict
of one but they may not choose to convict on both[.]” 21 However,
no such instruction was given. Instead, after a finding of

18
     Charge Sheet.
19
     Id.
20
     Record at 690.
21
     Id. at 690-91.
                                11
guilty to both specifications, the military judge merged,
without defense objection, the two specifications for
sentencing.

     In its Answer, the Government concedes that the two
specifications under Charge IV should be consolidated. We agree
that separate convictions for these two specifications cannot
stand. Accordingly, we will dismiss Specification 2 of Charge
IV, as the conduct alleged in that specification is logically
encompassed by the actions alleged in Specification 1. 22

                            Members Selection

     In July 2008, Commander, Naval Air Force Atlantic
(COMNAVAIRLANT) issued an instruction 23 to subordinate commands
establishing the procedure for nominations of prospective court-
martial members. That instruction directed each subordinate
command to provide a certain number of nominees in the grades of
O-5, O-4, “LT [Lieutenant] or Below” and “Enlisted (E7/E8/E9).” 24
The instruction did not call for nominees below E-7, regardless
of how junior a particular appellant may be, and did not call
for anyone O-6 or above. 25

     The appellant avers that members below the pay grade of E-
7, above the pay grade O-5, and all warrant and chief warrant
officers were impermissibly and systematically excluded from the
nomination process by the CA.

     We review claims of error in the selection of court-martial
members de novo. United States v. Kirkland, 53 M.J. 22, 24
(C.A.A.F. 2000). We look at three primary factors to determine
whether an impermissible member selection has taken place:

        1. Improper motive in packing a member pool;


22
  This is not to say the two specifications are multiplicious, or meet the
elements test of United States v. Teters, 37 M.J. 370, 375-76 (C.A.A.F.
1993). We need not review this issue through a multiplicity lens, as we
reach the same result by finding an unreasonable multiplication of charges.
23
  COMNAVAIRLANT Instruction 5813.1H, 29 Jul 2008 (Supp. Clemency Request of
15 May 2014, encl. (1).)
24
     Id. at 2.
25
  It is unclear, as the Government concedes, whether the “LT or Below”
language intended only O-1 to O-3 nominees or permitted nomination of warrant
and chief warrant officers. Appellee’s Brief of 20 Apr 2015 at 57 n.4.
                                     12
      2. Systematic exclusion of potential members based on
      rank or other impermissible variable; and,

      3. Good faith attempts to be inclusive and open the
      court-martial process to the entirety of the military
      community.

United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). If
either of the first two criteria is present, the process is
impermissible. Id. These criteria are not only considered in
the actual panel selection process, but also in the process of
presenting nominations to the CA. United States v. Roland, 50
M.J. 66, 69 (C.A.A.F. 1999).

     In a case of systematic exclusion of members by rank, it is
the responsibility of the defense to establish the improper
exclusion. Kirkland, 53 M.J. at 24. Once improper exclusion
has been shown, the burden shifts to the Government “to
demonstrate that the error did not ‘materially prejudice the
substantial rights of the accused.’” Dowty, 60 M.J. at 173
(quoting Art. 59(a), UCMJ).

     The Government urges us to find waiver in the appellant’s
failure to raise this issue before trial. See R.C.M. 912(b)(3).
While such an objection “ordinarily . . . must be made before
trial,” Dowty, 60 M.J. at 174 (citation and interal quotation
marks omitted), we may “pass[] over the procedural deficiency to
reach the substance of the issue.” Id. The seriousness of the
alleged error and the absence of any evidence that the appellant
was aware of the COMNAVAIRLANT instruction prior to trial compel
us to address the appellant’s claim.

     While we find the appellant has established that the
instruction improperly excluded potential members from the
selection process on the basis of rank, 26 the question remains
whether that improper nomination process materially prejudiced
the appellant. See United States v. Ward, 74 M.J. 225 (C.A.A.F.
2015) (holding similar use of COMNAVAIRLANT Instruction 5813.1H
to be harmless error). In reviewing this case, including
affidavits from the CA and his staff judge advocate (SJA) we
find: (1) no evidence that the errant instruction was issued
with an improper motive; (2) no evidence that the CA had an
improper motive when detailing the members assigned to the

26
  While the CA indicates he understood it was within his discretion “to
consider and select any member in [his] command,” Affidavit of VADM Ted N.
Branch, USN, of 26 Jun 2015, this does not cure the defect in the nomination
process. Government Motion to Attach of 6 Jul 2015.
                                     13
appellant's court-martial; (3) the CA was a person authorized to
convene a general court-martial; (4) the CA was properly advised
of his Article 25 responsibilities, and that he could pick any
member of his command, not just those who had been nominated;
(5) the court members were personally chosen by the CA from a
pool of eligible candidates; and, (6) the court members all met
the criteria in Article 25, UCMJ. Under these circumstances, we
are convinced that the appellant’s case was heard by a fair and
impartial panel, and that the error in this case was harmless.
See United States v. Bartlett, 66 M.J. 426, 431 (C.A.A.F.
2008). 27

                          Sentence Reassessment

     When setting aside or consolidating specifications, this
court will normally reassess the sentence in light of those
changes. In this case, however, the members were specifically
instructed that “the offenses charged in Specification 1 and
Specification 2 of Charge III, are one offense for sentencing
purposes. . . . Likewise, the offenses charged in Specification
1 and Specification 2 of Charge IV, are one offense for
sentencing purposes.” 28 As we are convinced that the
unreasonably multiplied charges did not affect the sentencing
decision, we see no need to reassess the sentence.


27
  In its initial Answer of 20 April 2015, the Government provided no evidence
of how the member selection process was conducted in this case. Accordingly,
having no information upon which we could resolve the Bartlett factors in the
Government’s favor, this court found that the Government had failed to meet
its burden of proving that the improper exclusion of members was harmless.
Thirty days after the court issued its 4 June 2015 opinion, the Government
filed a motion for reconsideration and a motion to attach affidavits from the
CA and his SJA. These motions contained neither an explanation as to why the
affidavits (nearly identical to those filed in other cases with the same
Article 25, UCMJ, issue) were not provided with its Answer, nor an
acknowledgement that the Government bore a burden of proof in this matter.
This sequence of events, due either to sloppiness or some inscrutable design,
wasted precious judicial resources. Furthermore, the Government’s motion for
en banc reconsideration is noteworthy for its misunderstanding of the
applicable case law. We are, therefore, compelled to repeat the applicable
rule: Once improper exclusion of potential members has been shown, the
burden shifts to the Government “to demonstrate that the error did not
‘materially prejudice the substantial rights of the accused.’” Dowty, 60
M.J. at 173 (quoting Art. 59(a), UCMJ) (emphasis added). Nothing in Ward,
changes this. To the contrary, our superior court clearly based its decision
in that case on what the Government had shown or established, even noting
“there exists no remedy for [such a] violation if the government shows it was
harmless.” Ward, 74 M.J. 225, slip op. at 11 n.5 (emphasis added).
28
     Record at 902.
                                     14
                           Conclusion

     The finding of guilty as to Specifications 1 and 2 of
Charge III are hereby consolidated into a single specification
to read as follows:

     In that Culinary Specialist First Class Petty Officer
     Lamont E. Hoyes, U.S. Navy, USS DWIGHT D. EISENHOWER
     (CVN 69), on active duty, did, on board Naval Station
     Norfolk on or about 7 March 2012, with intent to
     deceive, make to Special Agent Jennifer Lynch, Naval
     Criminal Investigative Service, official statements,
     to wit: “I did not have sex with [SF] that night” and
     “That night I never entered any of the hotel rooms
     other than my own at the Best Western,” or words to
     that effect, which statements were totally false, and
     were then known by said Culinary Specialist First
     Class Petty Officer Lamont E. Hoyes, U.S. Navy, to be
     so false.

The finding of guilty as to Specification 2 of Charge IV is set
aside, and that specification is conditionally dismissed pending
finality of direct review pursuant to Article 71(c), UCMJ, 10
U.S.C. §871(c).

     With these modifications, the findings and the sentence are
affirmed.

     Senior Judge BRUBAKER and Judge MARKS concur.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                               15
