               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      CHRISTOPHER M. BROWN
                   CAPTAIN (O-3), U.S. MARINE CORPS

                           NMCCA 201300252
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 14 December 2012.
Military Judge: Col G.W. Riggs, USMC.
Convening Authority: Commanding General, U.S. Marine Corps
Forces Command, Norfolk, VA.
Staff Judge Advocate's Recommendation: LtCol D.J. Bligh,
USMC.
For Appellant: CDR Christopher Geis, JAGC, USN.
For Appellee: Capt Matthew Harris, USMC.

                              30 June 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.

PER CURIAM:

     A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of wrongfully selling military property, one
specification of possessing a machine gun in violation of 18
U.S.C. § 922(o)(1), one specification of obstructing justice,
and one specification of receiving stolen property, in violation
of Articles 108 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 908 and 934. The military judge sentenced the
appellant to confinement for 12 months, forfeiture of $1000.00
pay per month for 12 months, a $15,000.00 fine, and dismissal
from the naval service. However, as a result of an error made
while the military judge was advising the appellant of the
effect that adjudged forfeitures would have on his sentence, the
convening authority (CA) ordered a post-trial Article 39(a),
UCMJ, session1 wherein the military judge reduced the sentence to
confinement for 12 months, a $5,000.00 fine, and a dismissal.
The CA approved the sentence as adjudged and ordered it
executed.2

     The appellant asserts three assignments of error: that the
Government failed to comply with the pretrial agreement by not
paying his spouse all of the deferred forfeitures she was
entitled to under the pretrial agreement (PTA); that the
appellant was improperly sentenced because the military judge
knew the terms of the PTA when conducting the post-trial
hearing; and that the military judge erred by not informing the
appellant that he would forfeit his right to retirement if
sentenced to a dismissal.3

     The appellant’s first assignment of error was rendered moot
when the Government paid the appellant’s wife the additional
monies owed under the PTA. Finding no merit in the appellant’s
second and third assignments of error, we conclude that the
findings and 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.

                                 Background

     The appellant is a former gunnery sergeant who had 14 years
of active duty enlisted service before becoming a commissioned
officer in 2006. In 2008 and again in 2009, the appellant

1
  Following trial, the CA ordered a proceeding in revision to clarify
potential confusion caused by the military judge’s explanation at trial of
the impact of the pretrial agreement’s sentence limitation on adjudged and
automatic forfeitures. Record at 120; Appellate Exhibit VIII.
2
  To the extent that the convening authority's action purported to execute the
dismissal, it was a nullity. United States v. Bailey, 68 M.J. 409 (C.A.A.F.
2009).
3
  The third assignment of error was raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).

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deployed to Iraq, where he served as a battalion logistics
officer. Upon returning from the deployments, the appellant
started receiving various items of stolen military property from
two gunnery sergeants in his unit. The total value of the
stolen property exceeded $14,000.00, and the appellant made
nearly $10,000.00 selling the military property on eBay.

     During 2009, one of the aforementioned gunnery sergeants
gave the appellant a fully automatic AK-47 rifle that had been
illegally brought back to the United States from Iraq. The
appellant kept the rifle until he learned that the gunnery
sergeant was being investigated by NCIS for possession of
similar illegal weapons. Not wanting to be found with the
weapon, the appellant cut the AK-47 into numerous pieces and
disposed of the pieces in various area dumpsters.

     Additional facts are developed below as needed.

                     Military Judge's Knowledge
                of a Sentence Limitation in the PTA

     The appellant asserts that the Government violated the
terms of its PTA “because the military judge was aware of the
sentence limitation portion, or Part II, of the PTA.”
Appellant’s Brief of 5 Sep 2013 at 10. The appellant further
argues that “the military judge’s perspective was tainted by his
knowledge of the sentence limitation of the PTA” and that
“[t]his [was] not what the accused bargained for . . . .” Id.
Having reviewed the PTA in this case, and finding no provision
that precludes the military judge from being aware of the
sentence limitation provisions, we will treat this assignment of
error as alleging that the military judge should have recused
himself from further participation in the case, vice a failure
by the Government to abide by the PTA.

      As stated in RULE FOR COURTS-MARTIAL 910(f)(3), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.), in a court-martial before a
military judge alone, the military judge “ordinarily shall not
examine any sentence limitation contained in the agreement until
after the sentence of the court-martial has been announced.”
However, a military judge is not automatically disqualified
based on knowledge of sentence limitations reached in a PTA,
because a military judge (sitting alone) is entitled “to the

                                    3
presumption that they have performed their sworn duty properly,
in the absence of a clear indication to the contrary." United
States v. Phillipson, 30 M.J. 1019, 1021 (A.F.C.M.R. 1990)
(footnote and citation omitted). Military judges are only
required to recuse themselves from a proceeding when their
impartiality might reasonably be questioned. Id. at 1022.
Nothing in the record here reasonably suggests that the military
judge was not impartial. To the contrary, despite knowing that
fines up to $10,000.00 could be approved and executed as
adjudged, the military judge reduced the fine from $15,000.00 to
$5,000.00; a clear sign that he was not influenced by the terms
of the PTA.

                       Loss of Retirement

     The appellant next argues that the military judge erred by
not informing him that he would forfeit his right to retirement
if sentenced to a dismissal. This argument is premised upon the
appellant’s belief that, given his “more than 20 years of active
military service at the time of his court-martial,” he “would
have been eligible for retired pay and benefits” if he had not
been “awarded a dismissal at court-martial . . . .” Appellant’s
Brief at 11.

     Although the loss of retirement benefits is “often the
single-most important sentencing matter to that accused and the
sentencing authority,” it is a collateral consequence. United
States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988). But see
United States v. Riley, 72 M.J. 115, 121 (C.A.A.F. 2013)
(holding “that in the context of a guilty plea inquiry, sex
offender registration consequences can no longer be deemed a
collateral consequence of the plea”).

     In United States v. Miller, the Court of Appeals for the
Armed Forces “explained the difficult task of challenging a
guilty plea in light of unforeseen consequences of a court-
martial conviction:

    [W]hen collateral consequences of a court-martial
    conviction . . . are relied upon as the basis for
    contesting the providence of a guilty plea, the
    appellant is entitled to succeed only when the
    collateral consequences are major and the appellant's

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     misunderstanding of the consequences (a) results
     foreseeably and almost inexorably from the language of
     a pretrial agreement; (b) is induced by the trial
     judge's comments during the providence inquiry; or (c)
     is made readily apparent to the judge, who nonetheless
     fails to correct that misunderstanding.

63 M.J. 452, 457 (C.A.A.F. 2006) (quoting United States v.
Bedania, 12 M.J. 373, 376 (C.M.A. 1982)) (additional citation
omitted). Turning to the facts of this case, we find that the
appellant’s argument fails for two reasons.

     Even assuming that the appellant was retirement eligible,4
the record clearly shows that there was no misunderstanding. To
the contrary, it indicates the appellant knew that he was likely
to lose his retirement benefits, and what the impact of that
would be. During his sentencing argument, the appellant’s
civilian defense counsel said “he’s going to lose retirement
that’s probably in excess of $1 million.” Record at 111.

     In light of these facts, we find no substantial basis in
law or fact for questioning the appellant’s guilty plea. United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).

                                 Conclusion

          The findings and the sentence as approved by the
convening authority are affirmed.


                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




4
  Under 10 U.S.C. § 6323 (a), officers in the Marine Corps cannot apply for
retirement, despite having more than 20 years of active service, until they
have completed 10 years of service as commissioned officers. The appellant
only had six years for commissioned service at the time of his court-martial.
The record is silent on whether he could have reverted back to enlisted
status and requested retirement.


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