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

                                  Before
               J.A. FISCHER, R.Q. WARD, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                     NESTOR L. SUAZOLOPEZ
          MACHINIST'S MATE SECOND CLASS (E-5), U.S. NAVY

                           NMCCA 201300463
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 21 June 2013.
Military Judge: CDR Colleen Glaser-Allen, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: LT Jessica Ford, JAGC, USN.
For Appellee: Maj Crista Kraics, USMC.

                           23 December 2014

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                     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.

PER CURIAM:

     An officer and enlisted member panel, sitting as a general
court-martial, convicted the appellant, contrary to his pleas,
of one specification of desertion, two specifications of
violating a lawful general order for wrongfully engaging in an
unduly familiar relationship with a U.S. Navy prospect, six
specifications of making a false official statement, one
specification of rape, one specification of aggravated sexual
Senior Judge Ward participated in the decision of this case prior to
commencing terminal leave.
assault and one specification of wrongful sexual contact, in
violation of Articles 85, 92, 107, and 120, Uniform Code of
Military Justice, 10 U.S.C. §§ 885, 892, 907, and 920.1 The
members sentenced the appellant to reduction to pay grade E-1,
confinement for five years, forfeiture of $3045.60 pay per month
for five years, and a bad-conduct discharge. The convening
authority (CA) disapproved the adjudged forfeitures, approved
the remaining sentence as adjudged and, except for the punitive
discharge, ordered it executed.

     The appellant raises six assignments of error (AOEs): (1)
that the military judge plainly erred when she admitted
documentary evidence that the appellant was a deserter; (2) that
members below the rank of E-6 were impermissibly excluded in the
nomination process; (3) that the Government failed to respond to
a specific defense discovery request for material used by the CA
in the nomination and selection of members; (4) that the staff
judge advocate’s recommendation (SJAR) is deficient because it
incorrectly advised the CA that the trial defense counsel did
not raise legal error; (5) that the appellant’s convictions for
rape and wrongful sexual contact are not legally or factually
sufficient; and, (6) that the civilian defense counsel was
ineffective.2

     After careful consideration of the record of trial, the
parties’ pleadings, and the appellant’s assignments of error, 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.




1
  Following a RULE FOR COURTS-MARTIAL 917, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.) motion, the military judge found the appellant not guilty of one
specification of forcible sodomy, Article 125, UCMJ. The members acquitted
the appellant of one specification of violating a lawful general order, one
specification of rape, three specifications of aggravated sexual assault, one
specification of wrongful sexual contact, and one specification of forcible
sodomy. Additionally, the military judge found the rape and aggravated
sexual assault convictions to be an unreasonable multiplication of charges
and therefore she conditionally dismissed the aggravated sexual assault
specification (Specification 2 of CH IV) “[to] ripen into full dismissal when
direct review becomes final pursuant to Article 71, UCMJ.” Record at 1261.
2
  AOEs V and VI are raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). We have considered these AOEs and find no error. United
States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992).


                                         2
                                 Background

     The offenses in this case stem from the appellant’s
interactions with two prospective recruit applicants during his
tour as a Navy recruiter. Logistics Specialist Third Class
(LS3) BH testified that in June 2010, during a visit to the
recruiting office where the appellant worked, the appellant took
her into a back room to perform a body composition measurement.3
LS3 BH testified that during the course of performing the
measurements the appellant pressured her for sex, but that she
refused. LS3 BH stated the appellant then forced her onto a
couch and engaged in sexual intercourse with her against her
will. The Government introduced evidence that multiple semen
stains found on that couch contained the appellant’s DNA.

     Another recruit applicant, Ms. SS, testified that during
the course of her application process, the appellant initiated
inappropriate physical contact and sent her non-professional
text messages. She further testified that his advances
culminated in an incident where he ran his hand up her inner
thigh during a visit to his recruiting office.

     The day prior to the Article 32, UCMJ, Investigation in
this case, the appellant fled the United States for his native
Honduras. Further evidence introduced at trial indicated the
appellant held dual Honduran and United States citizenship.
Approximately eleven months later, the appellant returned to the
United States after surrendering himself to the United States
Embassy in Honduras. These facts gave rise to his conviction
for desertion.

                  Admission of NAVPERS Form 1070/606

     Prior to seating the panel, the trial counsel offered
Prosecution Exhibit 1 into evidence. The third page of PE 1 was
NAVPERS Form 1070/606 dated 6 March 2013 which documented the
appellant’s unauthorized absence. Without objection from the
trial defense counsel, the military judge admitted PE 1 into
evidence. The “Amplifying Remarks” section of PE1 contained the
following:

      17APR2012: Member reported as deserter this date.
      Member deliberately fled the country prior to his
      previously scheduled Art. 32 hearing and has exhibited

3
  COMNAVCRUITCOM INSTRUCTION 5370.1D (27 Jan 2010) requires that same-sex
individuals perform all body-fat measurements on prospective recruits.
                                      3
        manifest and (sic) intent to desert. 06MAR2013: MBR
        SURR to U.S. Embassy Honduras, 01MAR2013. RTN to
        MILCON 1700, 02MAR2013. ROB TPU NORVA 0020,
        03MAR2013. Retained ONBD for DISCIPACT/Disposition.

     In his first AOE, the appellant avers that the military
judge plainly erred in admitting the above language into
evidence because it was irrelevant, prejudicial, and offered a
legal conclusion as to the appellant’s guilt to desertion.
Applying a plain error analysis we disagree.

     A military judge's decision to admit or exclude evidence is
reviewed under an abuse of discretion standard. United States
v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004). However, when an
appellant objects to the admission of evidence for the first
time on appeal, we review for plain error. United States v.
Powell, 49 M.J. 460, 465 (C.A.A.F. 1998). To constitute “plain
error,” an error must in fact exist, that error must be plain or
obvious, and the error must materially prejudice a substantial
right of the appellant. United States v. Lepage, 59 M.J. 659,
660 (N.M.Ct.Crim.App. 2003).

     The NAVPERS Form 1070/606 was clearly relevant and material
to establish the dates and circumstances of the appellant’s
absence. PE 11 stipulated to the appellant’s airline flight
from New York, NY to Honduras (via Atlanta) on 17 Apr 2012 as
well as the appellant’s 1 Mar 2013 surrender to the U.S. Embassy
in Tegucigalpa, Honduras and his return to U.S. military control
on 2 Mar 2013 in Miami, FL. Thus, the appellant’s intent was
the sole element at issue on the desertion charge.4 Although the
military judge may have erred in admitting the language in PE 1
referencing desertion and/or the appellant’s intent, we do not
find such error to be plain and obvious, nor do we find any
error materially prejudiced a substantial right of the
appellant.

     While the “Amplifying Remarks” referenced desertion, we
note that the document itself is entitled “Record of
Unauthorized Absence” and the terms “Unauthorized Absence” or
“UA” occur six additional times throughout the document. On its
face the document is clearly an administrative form used to
record the appellant’s absence from his unit. Moreover, the
trial counsel did not make a single reference to the NAVPERS
form or the Amplifying Remarks language in her opening
statement, closing arguments, or otherwise throughout the trial.

4
    Appellant’s Brief of 27 Feb 2014 at 8.
                                        4
The facts surrounding the appellant’s absence were fully before
the members and the military judge properly instructed them on
the elements for desertion and unauthorized absence as well as
the difference between the two offenses. The members
acknowledged and understood the military judge’s instruction in
this regard.5 Under these circumstances, we disagree with the
appellant’s assertion that admission of the Amplifying Remarks
language constituted plain error.

                      Panel Member Selection

     In his second AOE the appellant avers that the CA
impermissibly and systematically excluded members below the pay
grade E-6 from the nomination process. On 22 March 2013,
Commander, Naval Region Mid-Atlantic issued an instruction to
subordinate commands establishing the procedure for nominations
of prospective court-martial members. The instruction directed
each subordinate command to provide a certain number of nominees
in the ranks of E-6 through O-6. The instruction did not call
for nominees below E-6, regardless of the accused’s pay grade.

     We review the proper selection of a court-martial panel 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; (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 established, the burden is placed on 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).



5
    Record at 1058.
                                5
     Assuming that the appellant established a systematic
exclusion of members based on the quotas set forth in the
instruction, we assess for material prejudice to the appellant.
In reviewing this case we find: (1) no evidence that the
instruction was issued with an improper motive; (2) no evidence
that the CA had an improper motive when detailing the members
assigned to the 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
knew that he could pick any member within his Region’s
claimancy, not just those who had been nominated; (5) the court
members were personally chosen by the CA from a pool of eligible
candidates; (6) the CA was specifically aware that he could
select members in the appellant’s paygrade of E-5, but based in
part on the practical concern of ensuring all members were
senior to the appellant, he chose to select members E-6 and
above6; and, (7) all court members 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 any error in this case was harmless.

                Discovery of Member Selection Matters

     In the course of the discovery process, the civilian
defense counsel requested all information which the CA and his
advisors used in the nomination of prospective members and in
the final selection of the court members for the court-martial
orders issued in this case. The instruction discussed above was
not provided to the defense, despite this request, and the
appellant asserts this failure constitutes prejudicial error.7

     Through Article 46, UCMJ, a military accused is granted the
“equal opportunity to obtain witnesses and other evidence in
accordance with such regulations as the President may
prescribe.” Moreover, upon request, an appellant is permitted
to inspect “papers . . . within the possession, custody, or
control of military authorities . . . which are material to the
preparation of the defense[.]” RULE FOR COURTS-MARTIAL
701(a)(2)(A), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).

     When determining whether there has been a discovery
violation, this court must determine whether the evidence at

6
  Government Motion to Attach of 13 Jun 2014, Affidavit of Rear Admiral T.G.
Alexander, USN (Ret).
7
  We note that the members questionnaires provided to the defense referenced
the instruction. Appellate Exhibit LIV.
                                      6
issue was subject to discovery and, if so, determine what effect
the failure to disclose had on the appellant’s trial. United
States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004). To be
eligible for defense discovery a document must be in the
Government’s possession or control and material to the
preparation of the defense. R.C.M. 701(a)(2)(A). When there
has been a discovery violation, we test that violation for
prejudice. In cases where the appellant either did not make a
discovery request or made only a general request for discovery,
the Government has the burden of proving that the error was
harmless. However, in those cases where the appellant made a
specific request for the undisclosed information, the Government
must show that the error was harmless beyond a reasonable doubt.
Roberts, 59 M.J. at 327.

     Although the appellant did not ask for the instruction in
question by name, his request was specific enough to trigger the
heightened requirement of proof beyond a reasonable doubt.
However, even applying that higher standard, we find against the
appellant. For the same reasons articulated above, we find that
despite the discovery violation, the appellant was tried by a
fair and impartial panel, and that the discovery error was
harmless beyond a reasonable doubt.

           Failure to Comment on Legal Error in SJAR

     In AOE IV, the appellant asserts that it was prejudicial
error for the staff judge advocate (SJA) to not address the
defense’s clemency submission that challenged the findings of
guilty to desertion, rape and wrongful sexual contact in the
SJAR. As a remedy, the appellant requests that this case be
remanded to the CA for new post-trial processing.

     R.C.M. 1106(d)(4) “requires that ‘the staff judge advocate
. . . state’ in his recommendation ‘whether, in’ his ‘opinion,
corrective action on the findings or sentence should be taken
when an allegation of legal error is raised in matters submitted
under R.C.M. 1105 or when otherwise deemed appropriate by the
staff judge advocate.’” United States v. Hill, 27 M.J. 293, 295
(C.M.A. 1988). An analysis or rationale for an SJA’s statements
concerning legal error is not required and a response may merely
consist of either a statement of agreement or disagreement with
any legal error raised by the appellant. R.C.M. 1106(d)(4).
When the defense raises an allegation of legal error in a
clemency submission, the SJA must advise the CA whether
corrective action is required. R.C.M. 1106(d)(4); see also
Hill, 27 M.J. at 296.

                                7
     In most instances, failure of the SJA to prepare a
recommendation with the contents required by R.C.M. 1106(d)(4)
will be prejudicial and will require remand of the record for
preparation of a suitable recommendation for the CA. Hill, 27
M.J. at 296. However, if we are convinced that under the
particular circumstances, a properly prepared recommendation
would have no effect on the CA – the burden in this regard being
on the Government – remand to the CA is unnecessary. Id.
Accordingly, if a defense allegation of legal error is presented
after trial and clearly has no merit, the accused is not
entitled to relief merely because of failure by the SJA to state
specifically in the SJAR that the assigned error lacked merit.
Id.

     In this case we note that the SJA prepared an addendum
following receipt of the civilian defense counsel’s post trial
submission and advised the CA that he was required to consider
the submitted matters in determining whether to approve or
disapprove any of the findings of guilty and his action on the
sentence.8 The SJA further recommended that the CA approve the
sentence as adjudged.

     We find that the evidence was legally and factually
sufficient to support the findings of guilty beyond a reasonable
doubt to the desertion, rape, and wrongful sexual contact
specifications. Thus, we find this issue without merit and
further find no prejudice to the appellant by the SJA’s failure
to comment on the allegations of error. Further advice from the
SJA would not have had an effect on the CA in this case.
Because the appellant was not prejudiced, returning this court-
martial to the CA is not necessary.

                                 Conclusion

     The approved findings as conditionally modified and the
sentence as approved by the CA are affirmed. The conditional
dismissal of Specification 2 under Charge IV shall ripen to a
full dismissal when direct review becomes final pursuant to




8
  The SJA specifically stated in the addendum that the defense has not raised
any allegations of legal error.
                                      8
Article 71(c), UCMJ, provided that the rape conviction is not
set aside during any subsequent appellate review. See United
States v. Britton, 47 M.J. 195, 204 (C.A.A.F. 1997) (Effron, J.,
concurring).

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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