              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                              Before
          M.D. MODZELEWSKI, F.D. MITCHELL, J.A. FISCHER
                     Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        TARRELL D. JILES
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                            NMCCA 201200062
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 9 October 2012.
Military Judge: LtCol Charles C. Hale, USMC.
Convening Authority: Commander, Marine Corps Base,
Quantico, VA.
Staff Judge Advocate's Recommendation: LtCol C.B. Shaw,
USMC.
For Appellant: LT Jared A. Hernandez, JAGC, USN.
For Appellee: CDR Kevin Flynn, JAGC, USN; LT Philip
Reutlinger, JAGC; Ian D. Maclean, JAGC, USN; Capt Matthew
Harris, USMC.

                              6 March 2014

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

FISCHER, Judge:

     A military judge, sitting as a special court-martial,
convicted the appellant, in accordance with his pleas, of four
specifications of violating a lawful general order (sexual
harassment) and five specifications of assault consummated by a
battery, in violation of Articles 92 and 128, Uniform Code of
Military Justice, 10 U.S.C. §§ 892 and 928. The military judge
sentenced the appellant to confinement for 100 days, reduction
to pay grade E-1, a punitive letter of reprimand, and a bad-
conduct discharge. The convening authority (CA) approved the
sentence as adjudged and suspended all confinement for a period
of 12 months pursuant to a pretrial agreement.

     The appellant asserts that the military judge erred by
failing to provide adequate remedies to remove the taint of
apparent unlawful command influence (UCI) committed by the
Commandant of the United States Marine Corp (hereinafter
“Commandant”). Additionally, the appellant asserts that the
Government wrongfully suppressed evidence that the Commandant
may have committed UCI in an unrelated case. He argues that
this action denied the appellant a fair trial, because the
military judge was unable to consider that evidence when
crafting appropriate remedies in his case and the defense was
prejudiced in pretrial negotiations with the CA.1

     After careful consideration of the record and the briefs of
the parties, we conclude that the findings and the sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant was committed. Arts.
59(a) and 66(c), UCMJ.

                           Procedural Timeline

     On 13 January 2012, charges were preferred against the
appellant for violations of Articles 92 and 120, UCMJ. These
charges stemmed from allegations that the appellant sexually
harassed and sexually assaulted multiple junior Marines between
January 2008 and July 2011. An Article 32, UCMJ, investigation
was conducted on 27 and 28 February 2012. Additional charges of
sexual assault and assault consummated by a battery were
preferred on 13 March 2012 and on that date all charges were
referred to a general court-martial. On 23 April 2012, pursuant
to a pretrial agreement, the charges and specifications were
withdrawn from the general court-martial and referred to special
court-martial. However, on 30 April 2012, the appellant
withdrew from the agreement and all charges and specifications
were subsequently withdrawn from the special court-martial and
were again referred to a general court-martial. The appellant
was then arraigned on 8 May 2012.2

1
  Both assigned errors were submitted pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
2
  Colonel Daniel J. Daugherty, USMC, was the military judge who presided at
the general court-martial. The record of trial delivered to the court for

                                      2
     On 15 June 2012, the trial defense counsel filed a motion
for appropriate relief maintaining that UCI flowing from
statements the Commandant made in a series of lectures known as
the “Heritage Briefs”3 prevented his client from being able to
receive a fair trial.4 The Commandant’s Heritage Brief was
directed towards all officers and staff noncommissioned officers
(SNCO) in the Marine Corps. The briefs focused in part on the
Commandant’s disappointment with the lack of accountability for
Marines who commit misconduct. In May 2012, the Commandant
disseminated a follow-up letter (White Letter 2-12) requesting
support from Marine Leadership in combating, inter alia, sexual
assaults in the United States Marine Corps. In July 2012, the
Commandant issued White Letter 3-12 explaining that the Heritage
Brief and White Letter 2-12 were not designed to influence any
Marine’s decision at courts-martial or boards of inquiry.

      On 11 July 2012, the military judge initially ruled the
defense presented some evidence of UCI and the burden shifted to
the Government to disprove the UCI under the test set forth in
United States v. Biagase, 50 M.J. 143, (C.A.A.F. 1999). GCM
Appellate Exhibit XX. On 18 July 2012, the UCI motion was
litigated at an Article 39(a) session. The parties stipulated
to the facts and did not call witnesses. At the conclusion of
the motion session, the military judge found that some of the
comments made by the Commandant during the Heritage Brief
appeared to violate RULE FOR COURTS-MARTIAL 104(a)(1), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.), which prohibits a convening
authority or commander from censuring, reprimanding, or
admonishing a court-martial or other military tribunal or any
member, military judge, or counsel, with respect to the findings
or sentence adjudged by the court-martial or tribunal. In order
to discern the Commandant’s intent behind some statements he
made during the Heritage Brief, the military judge ordered that
interrogatories be prepared and served on the Commandant.



docketing consisted of seven volumes. Five of the volumes reflect the
proceedings of the general court-martial from the Article 32 investigation
through the withdrawal of those charges on 28 September 2012. References to
documents or transcript from those five records will be preceded by the
letters GCM (i.e., GCM Record at 52).
3
  The lectures took place between April and June 2012. The Commandant gave
his “Heritage Brief” at Quantico, Virginia on 1 June 2012.
4
  The relief requested by trial defense counsel was a dismissal of all
charges. GCM Appellate Exhibit XVII at 28, 31.


                                      3
     On 27 July 2012, the military judge issued a twenty-two
page written ruling on the UCI motion. GCM Appellate Exhibit
XXXV. In his ruling, the military judge found: (1) The defense
had met their initial burden of raising the issue of UCI by
“some evidence” and that the evidence bore a “logical
connection” to the court-martial; (2) The Government had met the
burden of proving beyond a reasonable doubt that the
Commandant’s comments during the Heritage Brief did not
constitute actual UCI; (3) The Government failed to meet its
burden of proving the Commandant’s comments during the Heritage
Brief did not constitute apparent UCI; (4) A disinterested
observer, fully informed of all the facts and circumstances
could reasonably conclude that the Commandant’s influence is
such that prospective court members may either consciously or
subconsciously believe that eighty percent of Marines accused of
a sexual offense are guilty and/or must be discharged from the
Marine Corps; and, (5) The Government had proven beyond a
reasonable doubt that, although apparent UCI existed, it had not
affected the proceedings at that point because the CA was not
improperly influenced by the Commandant’s actions, the defense
had full access to evidence, and all requested defense witnesses
are available and willing to testify favorably on behalf of the
appellant. Id. at 19-21.

     To address the apparent UCI, the military judge granted the
defense three additional peremptory challenges. Id. at 22.
Moreover, the military judge indicated he would conduct
extensive voir dire of the panel and would permit the trial and
defense counsel to conduct extensive individual voir dire. Id.
Finally, the military judge stated he would exercise the liberal
grant mandate and “take such other appropriate measures
requested or unilaterally to avoid even the appearance of evil
in th[e] case.” Id. The military judge concluded his ruling by
denying the defense motion to dismiss. He indicated that, if
the responses to interrogatories, the voir dire of the members
or other matters presented additional evidence of UCI or
potential prejudice, he would reconsider his ruling and take
whatever action may be required. Id.

     On 31 August 2012, the military judge held another Article
39(a) session on UCI, at which he addressed a trial defense
motion to reconsider his earlier ruling. GCM AE XXXIX and XL.
On 12 September 2012, the military judge issued a twelve page
written supplemental ruling denying the defense motion to
reconsider. In his supplemental ruling the military judge
addressed the Commandant’s interrogatory responses and affirmed
his prior ruling that the apparent UCI did not impact the

                                4
proceedings up to that point and that the remedial measures he
implemented negated any taint.

     On 28 September 2012, pursuant to a pretrial agreement, all
charges and specifications were again withdrawn from a general
court-martial and referred to special court-martial. On 9
October 2012, consistent with the terms of the pretrial
agreement, the appellant entered guilty pleas to four
specifications for failing to obey a lawful general order
(sexual harassment) and five specifications of assault
consummated by a battery. The remaining charges and
specifications were withdrawn and dismissed by the Government in
accordance with the pretrial agreement.

                             Discussion

Unlawful Command Influence

     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 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).
     “[O]nce unlawful command influence is raised at the trial
level, as it was here, a presumption of prejudice is created.”
Id. (citing Biagase, 50 M.J. at 150). To affirm in such a
situation, we must be convinced beyond a reasonable doubt that
the unlawful command influence had no prejudicial impact on the
court-martial. Id. “We 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.” United States v. Lewis, 63 M.J.
405, 415 (C.A.A.F. 2006).

     In this case, the military judge was vigilant and proactive
in addressing UCI. He held two separate Article 39(a) sessions
to fully litigate the issue. The military judge ordered
interrogatories from the Commandant to address statements made


                                 5
during the Heritage Briefs. To address apparent UCI, the
military judge provided three additional peremptory challenges
to the defense, stated his intention to conduct extensive voir
dire of potential panel members and granted the trial defense
counsel the opportunity to conduct extensive individual voir
dire of the members to ensure a fair and impartial panel.
Finally, he stated that he would publish White Letter 3-12 for
the members to read. We conclude that the military judge’s
actions sufficiently ameliorated any taint or potential taint
from apparent UCI. Moreover, the military judge made it clear
he would remain engaged on UCI throughout the proceedings and
would take all necessary steps to ensure the appellant received
a fair trial.

     The remedies put in place by the military judge to ensure a
fair and impartial panel were rendered irrelevant when the
appellant elected to plead guilty to a portion of the charges
and entered into a pretrial agreement with the CA.5 The
appellant’s claim on appeal that he was forced into this
circumstance due to the inadequacy of the military judge’s
remedies is wholly unsupported by the record.

     The military judge did not abuse his discretion in crafting
remedies and we are convinced beyond a reasonable doubt that a
reasonable member of the public would not harbor significant
doubts as to the fairness of these proceedings. Under the
factual circumstances here, we find beyond a reasonable doubt
that this case was not tainted by UCI.

Discovery

     On 3 September 2013, this court issued an order granting
the appellant’s request to attach multiple sworn declarations
and statements to the record. These statements from various
Marine officers address military justice proceedings in
unrelated cases against individuals involved in the desecration
of enemy corpses in Afghanistan. In sum, the general officer
designated as the Consolidated Disposition Authority (CDA) in
those cases described a meeting he had with the Commandant
concerning disposition of the cases. Following the meeting, the
Commandant took action to replace the CDA as convening authority
for the cases and specifically stated in the withdrawal memo:



5
  As part of the agreement, the appellant elected trial by military judge
alone. The appellant stated this was a freely bargained for provision and no
one forced him to give up his right to a members trial.

                                     6
      I believe some of my comments during our recent
      conversation could be perceived as possibly
      interfering with your independent and unfettered
      discretion to take action in those cases. To protect
      the institutional integrity of the military justice
      process, and to avoid any potential issues, I withdraw
      your CDA designation.

     The appellant maintains the Commandant’s above statement
contradicts his answers to the court-ordered interrogatories in
this case. In his supplemental brief, the appellant asserts
that the Government wrongfully withheld from the defense the
Commandant’s memorandum quoted above thus denying the appellant
a fair trial. As prejudice, he cites the unavailability of the
memorandum to the military judge when crafting appropriate
remedies and to the defense during pretrial negotiations with
the CA.

     Article 46, UCMJ, 10 USC § 846, provides all parties to a
court-martial with “equal opportunity to obtain witnesses and
other evidence in accordance with such regulations as the
President may prescribe.” R.C.M. 701(e) further provides that
“[n]o party may unreasonably impede the access of another party
to a witness or evidence.” R.C.M. 701(a)(6), which implements
Brady v. Maryland, 373 U.S. 83 (1963), requires the Government
to disclose known evidence that reasonably tends to negate or
reduce the accused's degree of guilt or reduce the punishment
that the accused may receive if found guilty. Evidence that
could be used for impeachment is also subject to discovery.
United States v. Bagley, 473 U.S. 667, 678 (1985). Each party
is entitled to the production of evidence that is relevant and
necessary. R.C.M. 703(f)(1). The Rules also set forth
additional duties concerning disclosure of information requested
by the defense, R.C.M. 701(a)(2) and (5), including the
requirement to permit the defense to inspect any documents
“which are within the possession, custody, or control of
military authorities, and which are material to the preparation
of the defense . . . .” R.C.M. 701(a)(2)(A).

     In cases in which the defense does not submit a discovery
request, or submits only a general discovery request, the
appellant is entitled to relief if he demonstrates that the
nondisclosure was wrongful and shows a “reasonable probability”6
of a different result at trial if the evidence had been
6
  In this context, the Supreme Court has defined a “reasonable probability” as
a probability sufficient to undermine confidence in the outcome. Bagley, 473
U.S. at 682.

                                      7
disclosed. Assuming without deciding that the Government’s
nondisclosure was wrongful, we are convinced, for the reasons
detailed below, that there was not a reasonable probability of a
different result had the material been disclosed. See United
States v. Roberts, 59 M.J. 323, 326-27 (C.A.A.F. 2004). The
appellant made a voluntary tactical decision to plead guilty and
enter into a pretrial agreement with the CA. In return the
appellant was tried at a lesser forum, was found guilty of only
a portion of the charges and specifications, had the remaining
charges and specifications withdrawn and dismissed, and had all
adjudged confinement suspended. We find the appellant’s
contention that disclosure of the Commandant’s memorandum would
have altered this outcome purely speculative. Simply put, there
is no evidence that suggests that the Commandant’s unrelated
statements regarding a different case would have impacted this
court-martial or the pretrial negotiations between the appellant
and the CA. Therefore, we conclude that it is not reasonably
probable that disclosure of the requested material would have
led to a different result.

                      Court-Martial Order

     We note that the court-martial order contains a scrivener’s
error with regard to Charge I, Specification 1, which
incorrectly states the appellant pled to, and was found guilty
of, violating a lawful general order between on or about 11
April 2011, to on or about 31 July 2011. The appellant
actually pled to, and was found guilty of, violating a lawful
general order between on or about 1 April 2011, to on or about
31 July 2011. We find the error harmless, but in keeping with
the principle that military members are entitled to records that
correctly reflect the results of their court-martial
proceedings, we will order corrective action in our decretal
paragraph. See United States v. Crumpley, 49 M.J. 538, 539
(N.M.Ct.Crim.App. 1998).

                        Conclusion

     The findings and the sentence as approved by the CA are
affirmed. The supplemental court-martial order shall reflect an

offense commencement date of “1 April 2011” in Specification 1
of Charge I.

    Chief Judge MODZELEWSKI and Senior Judge MITCHELL concur.

                                For the Court

                               8
R.H. TROIDL
Clerk of Court




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