         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201300425
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                        MARK A. THOMPSON
                    Major (O-4), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Lieutenant Colonel Charles C. Hale, USMC.
    Convening Authority: Superintendent, U.S. Naval Academy,
                          Annapolis, MD.
   Staff Judge Advocate’s Recommendation: Captain R.J. O’Neil,
                            JAGC, USN.
 For Appellant: Major M. Brian Magee, USMC; Lieutenant Jacob E.
                       Meusch, JAGC, USN.
 For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
                USN; Major Cory A. Carver, USMC.
                      _________________________

                          Decided 13 June 2017
                         _________________________

 Before G LASER -A LLEN , H UTCHISON , and J ONES , Appellate Military
                                Judges
                         _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   JONES, Judge:
   A panel of members sitting as a general court-martial convicted the
appellant, contrary to his pleas, of two specifications of violating a lawful
                         United States v. Thompson, No. 201300425


general order, one specification of committing an indecent act, and two
specifications of conduct unbecoming an officer and a gentlemen, in violation
of Articles 92, 120, and 133, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 892, 920, and 933. The convening authority (CA) approved the
adjudged sentence of 2 months’ confinement, forfeiture of $2,500.00 pay per
month for 24 months, and a reprimand.1
    The appellant raises four assignments of error (AOEs): (1) the military
judge erred when he instructed the members that “[i]f, based upon your
consideration of the evidence, you are firmly convinced that the accused is
guilty of the crime charged, you must find him guilty[;]”2 (2) the military
judge abused his discretion by precluding the appellant from cross-examining
a complaining witness about a prior inconsistent statement she made against
him; (3) the military judge abused his discretion by excluding evidence that a
key government witness made prior inconsistent statements; and (4) the
military judge abused his discretion in failing to eradicate apparent unlawful
command influence from the appellant’s trial.3
    The first AOE has been resolved by our superior court against the
appellant.4 We disagree with the remaining AOEs and, finding no error
materially prejudicial to the substantial rights of the appellant, affirm the
findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                                   I. BACKGROUND
   In 2010, SS and AP were Naval Academy midshipmen, friends, and
members of the Rifle Team. The appellant was a history professor at the
Academy. The midshipmen met the appellant in the fall of 2010 when he
became the Officer Representative for the Rifle Team. SS testified that she
began a personal relationship with the appellant in February 2011, while
traveling for a Rifle Team competition. SS further averred that the appellant
ran with her during her physical training hours to assist her in getting in
better physical shape, and that their relationship eventually turned physical.

   1 The Judge Advocate General of the Navy forwarded the appellant’s case to the
Navy-Marine Corps Appellate Review Activity on 12 February 2016, for review under
Art. 69(d), UCMJ, 10 U.S.C. § 869(d) (2012). The court “may take action only with
respect to matters of law.” Art. 69(e), UCMJ, 10 U.S.C. § 869(e) (2012).
   2   Record at 1501.
   3 The appellant alleged three original AOEs and one Supplemental AOE, which
we renumber as the fourth AOE.
   4  The Court of Appeals for the Armed Forces found no error in the use of the
same challenged instruction in United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017),
and in accordance with that holding, we summarily reject this AOE. United States v.
Clifton, 35 M.J. 79 (C.M.A. 1992).


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                        United States v. Thompson, No. 201300425


She claimed that she had sexual intercourse with the appellant in his home
about five times including, on one occasion, a threesome with the appellant
and another male Marine.
    On 30 April 2011, AP and SS attended a Naval Academy croquet match
where they drank alcohol throughout the day and into the evening.5 SS then
wanted to go to the appellant’s home and confront him because she was upset
and jealous that the appellant had “blown [her] off” for another female.6 She
convinced AP to go with her “for moral support.”7 According to the two
midshipmen, the appellant invited them in and the three eventually began
playing strip poker and drinking more alcohol. As the game wore on, AP
became more intoxicated than the appellant and SS, so SS began pouring
water into AP’s shot glass, vice alcohol, when she would lose a hand. The
midshipmen testified that at some point, they went back to the appellant’s
bedroom where he had sex with both of them on his bed. SS testified that she
was very intoxicated and does not recall actually having sexual intercourse
with the appellant, but remembered being led into the appellant’s bedroom,
lying on the bed naked with the appellant and AP, and observing the
appellant on top of AP. SS testified that a few days later the appellant told
her that he had sex with both SS and AP. AP testified that she saw the
appellant on top of SS, and then on top of her, having sex with her. AP
claimed she was substantially incapacitated, and did not consent to the
sexual intercourse. Afterwards, AP vomited in the bathroom, took a shower,
and then the two midshipmen left the appellant’s home.
   According to SS, she last had sex with the appellant at his home about
May 2011, to “christen” her as an ensign, upon her graduation from the
Academy in May 2011.8 In January 2012, AP divulged to the Rifle Team
Coach that the appellant had sexually assaulted her approximately eight




   5  The Naval Academy participates in an annual “Annapolis Cup Croquet Match”
against St. John’s College. The match has been described as: “An annual rite of
spring, the Annapolis Cup brings together two starkly different schools—St John’s
College and the U.S. Naval Academy—for a croquet match like no other. The
community-wide event attracts several thousand people to the heart of Annapolis for
a festive lawn party complete with outrageous costumes, old-fashioned picnics, swing
dancing, and, of course, croquet competition.” ANNAPOLIS CUP CROQUET MATCH,
https://www.sjc.edu/annapolis/events/croquet (last visited 6 June 2017).
   6   Record at 827.
   7   Id. at 572.
   8   Id. at 883.


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                         United States v. Thompson, No. 201300425


months earlier.9 The appellant’s relationship with SS came to light in the
ensuing investigation.
    In September 2011—five months after the incident at the appellant’s
home—AP sought medical attention for a disease. Over a year later, she
speculated to a friend that the appellant may have given her this disease.
The defense filed a pretrial motion, pursuant to MILITARY RULE OF EVIDENCE
412(b)(1)(C), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) (MIL
R. EVID.), seeking admission of both the statement and AP’s medical record.
The defense sought the evidence to impeach AP’s Article 32, UCMJ, hearing
testimony, in which she stated she had not sought medical attention of any
kind related to the alleged sexual assault, and to attack her credibility for
allegedly spreading a false rumor against the appellant. The military judge
conducted a MIL. R. EVID. 412 closed-session hearing, reviewed AP’s medical
records in camera, and did not allow admission of AP’s medical record, or
cross-examination into the matter.
   At trial, SS admitted, during cross-examination, that she told a friend,
JM, about her threesome with the appellant and another man. Trial defense
counsel then asked SS: “[D]id you tell somebody that after the croquet match
you went over to somebody’s house with another Midshipman and you had
sex with two men at the same time? Do you recall telling somebody that?”10
SS answered, “No, I do not.”11 In their case-in-chief, the defense called JM to
question her about what SS had told her regarding a threesome with two
men. The government objected under MIL. R. EVID. 613(b), claiming this to be
improper impeachment. The judge held a hearing outside the presence of the
members, in which JM testified that SS had told her about having a
threesome with two men and that SS was worried about a friend who had
been really drunk when they had played strip poker. The following exchange
between the trial defense counsel and JM occurred:
             Q. . . . so this is after the croquet match, a couple of days
         later, she starts telling you a story—
              A. Um-hum
              Q. –about having a—sex with two men?
              A. Yes.
              Q. And another Midshipman being present?


   9  The appellant was acquitted of sexually assaulting AP while she was
substantially incapacitated.
   10   Record at 884.
   11   Id.


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                       United States v. Thompson, No. 201300425


            A. I don’t know if the Midshipman was present for the
         sexual activity. . .12
The military judge found that SS had not denied telling a friend that after
the croquet match she had sex with two men, and that JM could not tie the
conversation regarding a threesome with SS and two men to the night in
question. Therefore, he denied the appellant the opportunity to present JM’s
testimony on this regard. The trial defense counsel then stated his intention
to re-call SS to establish the inconsistency to the military judge’s satisfaction,
but ultimately chose not to do so.
                                  II. DISCUSSION
A. Preclusion of prior inconsistent statement and false allegation by
AP
   We review the military judge’s ruling to exclude evidence pursuant to
MIL. R. EVID. 412 for an abuse of discretion. United States v. Roberts, 69 M.J.
23, 26 (C.A.A.F. 2010) (citing United States v. Ayala, 43 M.J. 296, 298
(C.A.A.F. 1995)). We review the findings of fact under a clearly erroneous
standard and the conclusions of law de novo. Id. The abuse of discretion
standard “recognizes that a judge has a range of choices and will not be
reversed so long as the decision remains within that range.” United States v.
Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (citations and internal quotation
marks omitted). Likewise, “[t]rial rulings limiting cross-examination are
reviewed for abuse of discretion.” United States v. Israel, 60 M.J. 485, 488
(C.A.A.F. 2005), (citing United States v. Shaffer, 46 M.J. 94, 98 (C.A.A.F.
1997) (additional citation omitted)).
    MIL. R. EVID. 412 prohibits evidence offered by the appellant to prove an
alleged victim’s sexual predispositions, or that she engaged in other sexual
behavior, except in limited contexts. MIL. R. EVID. 412(a), (b). “The rule ‘is
intended to shield victims of sexual assaults from the often embarrassing and
degrading cross-examination and evidence presentations common to [sexual
offense prosecutions].’” United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F.
2011) (quoting United States v. Gaddis, 70 M.J. 248, 252 (C.A.A.F. 2011)
(alteration in original) (additional citation omitted)). There are three
exceptions to the rule, the third of which is in contention here—evidence is
admissible if “the exclusion of . . . [that evidence] would violate the
constitutional rights of the accused.” MIL. R. EVID. 412(b)(1)(C).
   Before admitting this type of evidence, however, the military judge must
conduct a balancing test as outlined in MIL. R. EVID. 412(c)(3) and clarified by
Gaddis. The test is whether the evidence is “relevant, material, and [if] the

   12   Id. at 1206.


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                     United States v. Thompson, No. 201300425


probative value of the evidence outweighs the dangers of unfair prejudice.”
Ellerbrock, 70 M.J. at 318 (citation omitted). Relevant evidence is any
evidence that has “any tendency to make a fact more or less probable than it
would be without the evidence[.]” MIL. R. EVID. 401, SUPPLEMENT TO MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Evidence is material if it is
“of consequence to the determination of appellant’s guilt[.]” United States v.
Dorsey, 16 M.J. 1, 6 (C.M.A. 1983) (citations and internal quotation marks
omitted). “Those dangers [of unfair prejudice] include concerns about
‘harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.’” Ellerbrock, 70
M.J. at 319 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). The
party intending to admit evidence under MIL. R. EVID. 412(c)(3) has the
burden of proving the evidence is admissible under the rule. United States v.
Banker, 60 M.J. 216, 223 (C.A.A.F. 2004).
    We find the military judge did not abuse his discretion by limiting the
cross-examination of AP and prohibiting admission of her medical record.
First, the military judged found that there was no false allegation when he
concluded that “[t]here [was] no evidence before the court of [AP] saying she
contracted [the disease] from the accused.”13 Second, the military judge found
no inconsistent statement because when AP sought medical care for a
medical condition in the fall of 2011, she “d[id]n’t know [it was] related to this
incident,” but surmised a year later, in 2012, it might have been from the
appellant “by process of elimination.”14 Therefore, there was no prior
inconsistent statement with her testimony from the Article 32, UCMJ,
proceeding—that she had not sought any medical attention specifically as a
result of the incident—for the defense to impeach.
    The military judge then conducted the proper balancing test, under MIL.
R. EVID. 412(c)(3), finding that the proffered evidence was irrelevant (and
therefore not material), not constitutionally required, and that its probative
value was outweighed by the danger of unfair prejudice. The military judge’s
findings of fact were not clearly erroneous and he did not abuse his discretion
in finding that the statement by AP to her teammate and AP’s medical record
were irrelevant and not constitutionally required. Assuming, arguendo, there
is any relevance to the evidence, this evidence was only “marginally
relevant,” Ellerbrock, 70 M.J. at 319, and its probative value was outweighed
by the danger of unfair prejudice. MIL. R. EVID. 403.
   The appellant asserts that he was denied his right to confront the witness
against him. “A defendant’s Sixth Amendment right to confront [a] witness[]

   13   Id. at 81.
   14   Id. at 61.


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                   United States v. Thompson, No. 201300425


against him is violated where it is found that a trial judge has limited cross-
examination in a manner that precludes an entire line of relevant inquiry.”
Israel, 60 M.J. at 488 (citation omitted). But that inquiry must be relevant
and, here, the military judge deemed it irrelevant.
    The appellant’s reliance on the case of United States v. Jasper, 72 M.J.
276 (C.A.A.F. 2013), is inapposite. In Jasper, the defense counsel was
forbidden from inquiring into the victim’s motive to fabricate. The victim had
told her pastor that she had made up earlier allegations to get attention, and
the court found that the statement was constitutionally required because the
fact that “she had made up some or all of the allegations to get attention
might cause members to have a significantly different view of her credibility.”
Id. at 281.
    The appellant’s case is distinguishable. The trial defense counsel was
focused on whether the statement was a prior inconsistent statement—and it
was deemed by the military judge to not be. Further, speculation by a friend
that AP had been referring to the appellant as a possible source of a medical
condition 18 months after the incident does very little to advance the claim of
fabrication or bias by AP. Although AP’s credibility was at issue, her belief
that she had acquired a disease from the appellant was an ancillary issue.
We agree with the military judge, who deemed this evidence irrelevant,
immaterial, and that any probative value it might have had was outweighed
by the danger of unfair prejudice and confusion of the issues.
B. Excluding evidence of SS’s prior inconsistent statements
   We review a decision to exclude evidence for an abuse of discretion.
United States v. Harrow, 65 M.J. 190, 199 (C.A.A.F. 2007).
    SS admitted to having a threesome—with two men—during cross-
examination. But when asked by the trial defense counsel—in a compound
question—whether she recalled telling someone that her threesome was the
same night as the croquet match, she stated she did not recall that. The
defense never clarified their compound question and SS’s response answered
the last question posed to her—that she did not recall telling a friend about
the threesome. An inability to remember can qualify as an inconsistent
statement. “[W]hether testimony is inconsistent with a prior statement is not
limited to diametrically opposed answers but may be found as well in evasive
answers, inability to recall, silence, or changes of position.” United States v.
Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993) (citing United States v.
Dennis, 625 F.2d. 782 (8th Cir. 1980) and United States v. Rodgers, 549 F.2d,
490 (8th Cir. 1976)). “A claimed inability to recall, when disbelieved by the
trial judge, may be viewed as inconsistent with previous statements . . . .”
Rodgers, 549 F.2d at 496.



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                          United States v. Thompson, No. 201300425


    But an inability to recall, if believed, is not an inconsistent statement. A
military judge has considerable discretion to determine whether an
inconsistency exists between a witness’s trial testimony and a prior
statement, and to determine both admissibility and use of prior statements.
Harrow, 65 M.J. at 200 (citing Damatta-Olivera, 37 M.J. at 478) (additional
citation omitted)); see also United States v. Nickens, No. 201500142, 2016
CCA LEXIS 204, at *15, unpublished op. (N-M. Ct. Crim. App. 31 Mar 2016),
aff’d on other grounds, 76 M.J. 126 (C.A.A.F. 2017) (summary disposition).
    First, the military judge found that SS did not deny telling a friend,
sometime after the croquet match, that she had had sex with two men.
Rather, when asked specifically if she recalled telling “somebody” that “after
the croquet match [she] went over to somebody’s house with another
Midshipman and . . . had sex with two men at the same time[,]” SS answered,
“[n]o, I do not.”15 Consequently, the military judge denied the appellant’s
request to question JM regarding statements purportedly made to her by SS.
The trial defense counsel then stated his intention to re-call SS to seek to
establish the inconsistency for the military judge, but never recalled her.
    Second, and more importantly, there must be a true inconsistency
between SS’s testimony and her recitation to JM regarding a threesome with
two men for the evidence to be admitted under MIL. R. EVID. 613. The
inconsistency “must appear ‘prima facie’ before the impeaching declaration
can be introduced. . . . [T]his inconsistency is to be determined, not by
individual words or phrases alone, but by the whole impression or effect of
what has been said or done.” Damatta-Olivera, 37 M.J. at 477-78 (citation
and internal quotation marks omitted).
    The defense theory of admissibility was that SS told JM that on the night
of the croquet match she had a threesome with two men. But, when the
defense attempted to tie SS’s comments about a threesome with two men to
the night of the croquet match, JM testified only that she “assum[ed]” they
were the same date, and that SS “never once mentioned that [the threesome
with the two men] was, in fact, th[e] weekend [of the croquet match].”16
Additionally, JM testified that she “d[id]n’t know if the [m]idshipman was
present for the sexual activity,” and didn’t even know her name.17 The
military judge did not abuse his discretion by failing to permit this
impeachment under MIL. R. EVID. 613.




   15   Id. at 884.
   16   Id. at 1205.
   17   Id. at 1205-06.


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                    United States v. Thompson, No. 201300425


    Even if we assumed the military judge erred, we find that error would be
harmless. “A finding or sentence of a court-martial may not be held incorrect
on the ground of an error of law unless the error materially prejudices the
substantial rights of the accused.” Art. 59(a), UCMJ. “Applying
nonconstitutional harmless error analysis, we conduct a de novo review to
determine whether this error had a substantial influence on the members’
verdict in the context of the entire case.” Harrow, 65 M.J. at 200 (citations
omitted). “The test for nonconstitutional evidentiary error is whether the
error had a substantial influence on the findings. . . . Importantly, it is the
Government that bears the burden of demonstrating that the admission of
erroneous evidence is harmless.” United States v. Flesher, 73 M.J. 303, 318
(C.A.A.F. 2014) (citations and internal quotation marks omitted). We weigh
four factors to determine whether the government has carried its burden: “(1)
the strength of the Government’s case; (2) the strength of the defense’s case;
(3) the materiality of the evidence in question; and, (4) the quality of the
evidence in question.” Id. (citation omitted).
    In applying this four-part test we find the government’s case was strong.
Both midshipmen corroborated each other’s testimony in their recitation of
the events of that night. Additionally, their testimony was “corroborated in
part by other witnesses, receipts, phone logs, and the pretext phone call
[from SS to the appellant].”18
    Second, the evidence supporting the defense’s case was relatively weak.
Although a key part of the defense’s strategy was discrediting SS, the defense
had plenty of other evidence of SS’s character for untruthfulness. The defense
presented evidence that SS had been involved in another case of
fraternization after leaving the Academy, had lied about it, and that she had
made other prior inconsistent statements. Additionally, they presented
opinion evidence that SS had a character for untruthfulness. An inconsistent
statement to JM would have added little to the defense’s efforts to discredit
SS.
    Third, the materiality of the potentially prior inconsistent statement was
minimal. As mentioned, this evidence was largely superfluous; the members
had other evidence which attacked the credibility of SS, making the omission
of any comment made to JM largely irrelevant.
    Finally, the quality of the evidence was, at best, questionable. As
discussed, supra, the evidence did not impeach SS’s statement that she could
not remember talking to a friend about the subject, and JM was unable to



   18Appellee’s Brief of 15 Dec 2016 at 31; Record at 923, 932, 940, 991; Prosecution
Exhibits 5, 9, 10.


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                    United States v. Thompson, No. 201300425


definitively match up different pieces of a conversation with SS regarding a
threesome with two males and the taking care of a drunken friend.
    Considering the four factors together, we conclude that if it was error to
limit impeachment based on SS’s potential prior statement, this did not have
a substantial influence on the verdict. Accordingly, any error is harmless.
C. Failing to eradicate apparent unlawful command influence19
    The appellant argues that the military judge erred in finding that the
facts establishing apparent unlawful command influence did not have a
logical connection to the appellant’s court-martial. Even assuming, arguendo,
this is correct, we nevertheless find the remedies provided by the military
judge—under the rubric of pretrial publicity—sufficiently protected the
proceedings against any possible unlawful command influence.
   1. The claim of apparent unlawful command influence
    At trial, and on appeal, the appellant argues that his trial was infected by
apparent unlawful command influence because: (1) the Commandant of the
Marine Corps (CMC) made inappropriate comments regarding the guilt of
those accused of sexual assault, in April 2012, during a series of lectures
known as the “Heritage Brief, which he gave at various Marine Corps
installations;” (2) President Obama made comments regarding holding people
accused of sexual assault accountable; (3) the Secretary of the Navy, Ray
Mabus, made comments regarding the Naval Academy failing to hold persons
who commit sexual assault accountable; (4) the Superintendent of the Naval
Academy, Vice Admiral Michael Miller, made a comment that he felt a “call
to action” in dealing with sexual assault cases; and (5) there was substantial
pretrial publicity surrounding the appellant’s case. We discuss each in turn.
    In response to public and congressional pressure regarding sexual
assaults in the military, in the summer of 2012 the CMC began a series of
speeches at Marine Corps installations throughout the world. “During these
speeches and events, the CMC chastised Marine Corps commanders for not
referring sexual assault cases to trial, and criticized Marine Officers and
Staff Non-Commissioned Officers for not discharging Marines at courts-
martial and administrative hearings.”20


   19 This AOE was raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
   20 Appellant’s Brief of 14 Nov 2016 at 3-4; Record at 189-90, Appellate Exhibit
(AE) XIII, Attachments 1, 11. For a detailed review of the CMC’s Heritage Tour, see
United States v. Easterly, No. 201300067, 2014 CCA LEXIS 40, unpublished op. (N-
M. Ct. Crim. App. 31 Jan 2014); United States v. Howell, No. 201200264, 2014 CCA
LEXIS 321, unpublished op. (N-M. Ct. Crim. App. 22 May 2014).


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                      United States v. Thompson, No. 201300425


    On 7 May 2013, just three weeks before the appellant’s trial, President
Obama, in speaking to reporters, and referring to sexual assaults, stated:
“The bottom line is, I have no tolerance for this. . . . If we find out somebody’s
engaging in this stuff, they’ve got to be held accountable, prosecuted, stripped
of their positions, court-martialed, fired, dishonorably discharged—period.”21
     Secretary Mabus criticized the Navy’s handling of sexual assault cases
when he visited the Academy shortly after the appellant was charged. In
commenting on the rise of sexual assaults at the military academies, he
stated, “I went to the Academy. I had the whole brigade there . . . [w]e have
failed at the Naval Academy in terms of preventing this. . . . It is shameful
that we have one sexual assault occur. . . . This is an attack on your
shipmate.”22
   Prior to the appellant’s trial, Vice Admiral Michael Miller, the
Superintendent of the Naval Academy and CA of the appellant’s case, made a
comment that he felt a “call to action” in dealing with sexual assault cases. 23
Lastly, all parties to the trial readily acknowledged that there was
substantial pretrial publicity surrounding the appellant’s case.24
   2. The law
    This court reviews a military judge’s ruling on unlawful command
influence de novo. United States v. Harvey, 64 M.J. 13, 19 (C.A.A.F. 2006);
United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999); United States v.
Wallace, 39 M.J. 284, 286 (C.M.A. 1994). We review the military judge’s

   21  AE XIII, Attachment 27; Record at 190. The appellate defense counsel also
notes, in his brief, that four days before the appellant’s trial, President Obama gave
the commencement speech at the Naval Academy where he “took note of the recent
cases in which service members have been charged with sexual assault. . . . [H]e said
[those people] ‘threaten the trust and discipline which makes our military strong.’”
Appellant’s Brief of 14 Nov 2016 at 6 (quoting Michael D. Shear, Obama Calls for
‘Moral Courage’ at Naval Academy Graduation, N.Y. TIMES, May 24, 2013, at A11).
This quote was not part of the record of trial because the unlawful command
influence motion was argued and decided on Thursday, 23 May 2013. President
Obama gave his speech to Naval Academy graduates the next day, Friday, 24 May
2013. The trial with the members began on Tuesday, 28 May 2013.
   22   Michael Hoffman, SecNav: Navy “Failed’ to Protect Midshipmen,
MILITARY.COM, (Jan. 17, 2013), http://www.military.com/daily-news/2013/01/17/
secnav-navy-failed-to-protect-midshipmen.html; Appellant’s Brief of 14 Nov 2016 at
5; Record at 197-200; AE XV, Enclosure 5.
    23 Michael Hoffman, SecNav: Navy “Failed’ to Protect Midshipmen, Military.com,

(Jan. 17, 2013), http://www.military.com/daily-news/2013/01/17/secnav-navy-failed-
to-protect-midshipmen.html.
   24   Record at 200-01.


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                   United States v. Thompson, No. 201300425


findings of fact in conjunction with the appellant’s claim under a clearly
erroneous standard. Wallace, 39 M.J. at 286. We review a military judge’s
remedy for unlawful command influence for an abuse of discretion. United
States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010); United States v. Gore, 60
M.J. 178, 187 (C.A.A.F. 2004).
    Unlawful command influence has often been referred to as ‘“the mortal
enemy of military justice.”’ Gore, 60 M.J. at 178 (quoting United States v.
Thomas, 22 M.J. 388, 393 (C.M.A. 1986)). Article 37(a), UCMJ, states in
relevant part: “No person subject to this chapter may attempt to coerce or . . .
influence the action of a court-martial or any other military tribunal or any
member thereof, in reaching the findings or sentence in any case . . . .”
“Congress and this court are concerned not only with eliminating actual
unlawful command influence, but also with ‘eliminating even the appearance
of unlawful command influence at courts-martial.’” United States v. Lewis, 63
M.J. 405, 415 (C.A.A.F. 2006) (quoting United States v. Rosser, 6 M.J. 267,
271 (C.M.A. 1979)). A military judge has the inherent authority to intervene
and protect the court-martial from the effects of apparent unlawful command
influence because the mere appearance of unlawful command influence may
be “‘as devastating to the military justice system as the actual manipulation
of any given trial.’” United States v. Ayers, 54 M.J. 85, 94-95 (C.A.A.F. 2000)
(quoting United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991)). “[O]nce
unlawful command influence is raised, ‘we believe it incumbent on the
military judge to act in the spirit of the Code by avoiding even the
appearance of evil in his courtroom and by establishing the confidence of the
general public in the fairness of the court-martial proceedings.’” United
States v. Stoneman, 57 M.J. 35, 42 (C.A.A.F. 2002) (quoting Rosser, 6 M.J. at
271).
    The appellant alleges apparent unlawful command influence. The Court
of Appeals for the Armed Forces (CAAF) recently stated that “unlike actual
unlawful command influence where prejudice to the accused is required, no
such showing is required for a meritorious claim of an appearance of unlawful
command influence[,]” because “the prejudice involved in the latter instance
is the damage to the public’s perception of the fairness of the military justice
system as a whole and not the prejudice of the individual accused.” United
States v. Boyce, __ M.J. __, No. 16-0546, 2017 CAAF LEXIS 494, at *14
(C.A.A.F. May 22, 2017).
   In Boyce, the CAAF provided the legal test for assessing claims of
apparent unlawful command influence:
          The appellant initially must show ‘some evidence’ that
       unlawful command influence occurred. . . . This burden on the



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                      United States v. Thompson, No. 201300425


         defense is low, but the evidence presented must consist of more
         than ‘mere allegation or speculation. . . .’
         [T]he burden then shifts to the government to rebut the
         allegation. Specifically, the government bears the burden of
         proving beyond a reasonable doubt that either the predicate
         facts proffered by the appellant do not exist, or the facts as
         presented do not constitute unlawful command influence. . . . If
         the government meets its burden, the appellant’s claim of
         unlawful command influence will be deemed to be without
         merit and no further analysis will be conducted. . . .
             If the government does not meet its burden of rebutting the
         allegation at this initial stage, then the government may next
         seek to prove beyond a reasonable doubt that the unlawful
         command influence did not place ‘an intolerable strain’ upon
         the public’s perception of the military justice system and that
         an objective, disinterested observer, fully informed of all the
         facts and circumstances, would [not] harbor a significant doubt
         about the fairness of the proceeding. . . . If the government
         meets its evidentiary burden at this stage of the analysis, then
         the appellant merits no relief on the grounds that there was an
         appearance of unlawful command influence.
Id. at *11-12 (citations and internal quotation marks omitted).
   3. The military judge’s ruling
    The defense focused solely on the appearance of unlawful command
influence, but the military judge determined that there was neither actual
nor apparent unlawful command influence. He deemed the evidence
presented by the defense, in support of their motion, had no logical
connection to the court-martial in terms of its potential to cause unfairness in
the proceedings, and viewed the issue as one of pretrial publicity. He agreed
that the defense had “shown lots of extensive pretrial publicity with regards
to the issue of sexual assault in the military,” but they had failed in
specifically linking unlawful command influence to the appellant’s case.25
   The military judge ruled:
         [T]here’s no . . . appearance or—that this—this chain of
         command has been influenced—or this Convening Authority
         has been influenced improperly. That said, you’re going to have
         an opportunity to extensively voir dire with regards to pretrial


   25   Id. at 193.


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                          United States v. Thompson, No. 201300425


         publicity of this issue when you conduct your voir dire. . . .
         [T]he court’s analysis and the defense’s argument has been on
         the appearance. If there is appearance of that, the court
         believes it has cured that as well by the additional peremptory
         challenges, totaling three, and allowing the extensive voir dire.
             But the court views this as an issue of high pretrial
         publicity . . . . [T]he defense has failed to show that there has
         (sic) been any acts directed towards this case that would
         constitute unlawful command influence, thus I’ve not shifted
         the burden to the government.
               And, again, the issue here really isn’t the second prong of
         Biagase that I’m concerned about, it’s the pretrial publicity
         . . . .26
    In order to ameliorate any adverse effects of pretrial publicity in the
appellant’s case, the military judge ordered the defense team to “have a line
of pretrial publicity questions laid out for [him] by 1300 [the next day].”27
   4. No actual or apparent unlawful command influence
    Although the appellant at trial, and on appeal, focuses only on the issue of
apparent unlawful command influence, our review on appeal must
necessarily consider whether actual or apparent unlawful command influence
tainted the appellant’s trial. United States v. Simpson, 58 M.J. 368, 374, 377
(C.A.A.F. 2003); Stoneman, 57 M.J. at 42-43.
    The appellant does not contend, and we do not find, any evidence of actual
unlawful command influence. We have found nothing in the record to suggest
that the Heritage Brief given by the CMC, or comments made by President
Obama, or Secretary Mabus, or Admiral Miller, improperly influenced either
the CA, staff judge advocate, or anyone else associated with the appellant’s
trial, to include the members. The defense was permitted extensive voir dire
of the members; individual voir dire comprising nearly 200 transcribed pages
in the record of trial.28 The military judge was also quite active in the voir
dire process, and ensured the members were carefully vetted. He paid
particular attention to whether any member had been exposed to pretrial
publicity about the case, or held biased opinions against persons accused of
sexual assault. The defense was also granted two additional peremptory
challenges—bringing the total number of peremptory challenges available to


   26   Id. at 219-21.
   27   Id. at 201.
   28   Id. at 290-504.


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                           United States v. Thompson, No. 201300425


the defense to three. The military judge only granted two of the four defense
challenges for cause, but the defense was able to use their two additional
peremptory challenges to remove the two members unsuccessfully
challenged; every member the defense challenged was removed from the
appellant’s panel.29
   We also find no apparent unlawful command influence. Specifically, the
appellant was acquitted of the sexual assault which formed the basis of the
apparent unlawful command influence claims at trial. It is a tenuous position
to argue on appeal that the members were unduly influenced against the
appellant due to pressure to convict servicemembers of sexual assault, when
the appellant was acquitted of this offense. Additionally, although the
military judge refused to rule out the possibility of the appellant receiving a
dismissal as a remedy, the members did not award one.
    In applying the Boyce test, we do not agree with the appellant’s assertion
that statements made by certain leaders—to hold those who commit sexual
assaults accountable—amounts to “some evidence” that unlawful command
influence occurred. However, even assuming, arguendo, that some evidence
that unlawful command influence occurred was presented, we find that the
government proved that the facts proffered by the appellant did not
constitute unlawful command influence. Assuming, further, that the
government did not meet its burden of rebutting the allegation at the initial
stage, we find that the government proved, beyond a reasonable doubt, that
the unlawful command influence did not place an intolerable strain upon the
public’s perception of the military justice system and that an objective,
disinterested observer, fully informed of all the facts and circumstances,
would not harbor a significant doubt about the fairness of the proceeding.
Therefore, the appellant merits no relief on the grounds that there was the
appearance of unlawful command influence.
    The military judge made it clear he would remain engaged on the issue of
pretrial publicity throughout the proceedings and would take all necessary
steps to ensure the appellant received a fair trial. He did so. He specifically
asked the defense, “[I]f I don’t find that in this chain of command that there’s
UCI, what do you want the court to do to ensure that the public looking at
this case says he received a fair trial and a fair panel?”30 Then, as discussed
supra, he gave the defense two of their three desired remedies—expanded
voir dire and extra peremptory challenges. Whether the remedies the
military judge awarded were under the rubric of unlawful command influence
or pretrial publicity, we find no abuse of discretion.


   29   Id. at 507, 525.
   30   Id. at 191.


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                   United States v. Thompson, No. 201300425


    In sum, in assessing apparent unlawful command influence, “[w]e focus
upon the perception of fairness in the military justice system as viewed
through the eyes of a reasonable member of the public. Thus, the appearance
of unlawful command influence will exist where an objective, disinterested
observer, fully informed of all the facts and circumstances, would harbor a
significant doubt about the fairness of the proceeding.” Lewis, 63 M.J. at 415.
   Applying this test, we are convinced beyond a reasonable doubt that a
reasonable member of the public would not harbor significant doubts as to
the fairness of the appellant’s proceedings, and that his case was not tainted
by unlawful command influence.
                              III. CONCLUSION
   The findings and sentence, as approved by the CA, are affirmed.
   Chief Judge GLASER-ALLEN and Judge HUTCHISON concur.
                                       For the Court




                                       R.H. TROIDL
                                       Clerk of Court




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