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

                             No. 201400067
                         _________________________

                 UNITED STATES OF AMERICA
                                  Appellee
                                     v.

                     MATTHEW P. HOFFMANN
                   Corporal (E-4), U.S. Marine Corps
                               Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Lieutenant Colonel Keith A. Parrella, USMC.
       Convening Authority: Commanding General, II Marine
        Expeditionary Force, Camp Lejeune, North Carolina.
  Staff Judge Advocate’s Recommendat ion: Major Kara J. Zummo,
                               USMC.
For Appellant: Commander Donald R. Ostrom, JAGC, USN; Captain
                      Thomas Fricton, USMC.
   For Appellee: Major Brian L. Farrell, JAGC, USN; Lieutenant
   Megan Marinos, JAGC, USN; Captain Sean M. Monks, USMC.
                      _________________________

                           Decided 9 July 2018
                         _________________________

 Before G LASER -A LLEN , H UTCHISON , and SAYEGH, 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.
                        _________________________

   GLASER-ALLEN, Chief Judge:
   A panel of officer members sitting as a general court-martial convicted the
appellant, contrary to his pleas, of indecent liberties with a child and child
enticement, in violation of Articles 120 and 134, Uniform Code Military
                      United States v. Hoffmann, No. 201400067


Justice (UCMJ), 10 U.S.C. §§ 920 and 934.1 The members sentenced the
appellant to ten years’ confinement, reduction to paygrade E-1, total
forfeiture of pay and allowances, and a dishonorable discharge. The CA
approved seven years’ confinement, reduction to paygrade E-1, total
forfeiture of pay and allowances, and a dishonorable discharge. With the
exception of the discharge, the convening authority (CA) ordered the
approved sentence executed.
   The appellant avers six assignments of error (AOE):2
   (1) the military judge abused his discretion by admitting propensity
evidence under MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 414, MANUAL
FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.);

   (2) the military judge erred when he failed to instruct the members on the
government’s burden to prove the uncharged offenses occurred by a
preponderance of evidence;3
    (3) the military judge erred when he did not extend his ruling that
Colonel (Col) W was disqualified from providing input on the Article 34 letter
as staff judge advocate to include other areas of pretrial advice;
   (4) the military judge should have recused himself;
   (5) the appellant’s sentence is inappropriately severe and highly disparate
from a closely related case;4 and
   (6) there is error requiring corrective action in the appellant’s Report of
Results of Trial due to an incorrect Defense Incident-Based Reporting System
(DIBRS) code.5
   Having carefully considered the record of trial and the parties’
submissions, we are convinced that the findings and the sentence are correct


   1   The members acquitted the appellant of attempted sodomy of a child.
   2   The AOEs have been renumbered for ease of discussion.
   3 This supplemental AOE was filed prior to our 21 February 2018 oral argument
held at George Washington University Law School.
   4   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
   5 In accordance with our recent decision in United States v. Baratta, 77 M.J. 691,
695 (N-M. Ct. Crim. App. 2018), we summarily reject the appellant’s final AOE as the
Report of Results of Trial in this case accurately reflects the findings and sentence.
(“[DIBRS codes] are neither findings nor parts of a sentence, thus we do not have the
authority to act upon them.”) Id. at 695 (citing Article 66(c), UCMJ). See United
States v. Clifton, 35 M.J. 79 (C.M.A. 1992).




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                      United States v. Hoffmann, No. 201400067


in law and fact and find no error materially prejudicial to the substantial
rights of the appellant. Arts. 59(a) and 66(c), UCMJ.
                                  I. BACKGROUND
   This case is before us for a second time. On 23 August 2013, the appellant
was convicted of offenses involving “Ryan” and possession of child
pornography.6 On 18 February 2016, our superior court set aside the findings
and sentence, dismissing the child pornography charges with prejudice and
authorizing a rehearing on the charges involving Ryan.7
    In April 2011, a man in a silver sport utility vehicle (SUV) with a yellow
New York license plate drove by Ryan, a 13-year-old boy, several times while
Ryan was walking home from school. On the third pass, the man pulled up
and asked Ryan if he wanted a “quickie.”8 Ryan declined, and the man asked
if Ryan knew what a “quickie” was. Ryan said “no,” and the man drove
around the block again. The man drove up to Ryan a fourth time and asked,
“[a]re you sure,” and “[y]ou’ll like it.”9 Ryan again declined and ran home. He
immediately reported the incident and provided a description of the vehicle to
the local Jacksonville, North Carolina Police Department. Police were unable
to locate the SUV driver at that time.
   In September 2011, a man in a light colored SUV slowly drove by Alex, a
13-year-old boy, while he was walking home from school on board Camp
Lejeune, North Carolina. On the first two passes, Alex noticed the man was
wearing a desert camouflage uniform and making a gesture with his hand
that Alex took to indicate fellatio. The third time the man drove by, he made
the same gesture and asked Alex if he wanted to go for a ride. Alex declined,
and the man drove away.
   Also in about September 2011, a man in a silver SUV drove by Pete, a 10-
year-old boy, while he was walking home from school on board Camp
Lejeune. Pete noticed the man drove by making a similar indecent gesture to
indicate fellatio. Pete noticed the SUV had a yellow license plate and spare
wheel on the back, and the male driver was wearing a green military
undershirt.
   In November 2011, Alex saw the SUV that had approached him in
September in the same vicinity of Camp Lejeune while he was walking home


   6 United States v. Hoffmann, 74 M.J. 542 (N-M. Ct. Crim. App. 2014). He was
acquitted of similar offenses involving “Alex” and “Pete.” All names are pseudonyms.
   7   United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016).
   8   Record at 423-26.
   9   Id.


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                       United States v. Hoffmann, No. 201400067


from school. He took a picture of it and immediately called his mother, who
promptly drove to his location. While returning home, Alex and his mother
passed the SUV and began following it. A high speed chase ensued, but Alex’s
mother was unable to keep up with the SUV. She noticed the SUV was a
“RAV4” with a hard case on the spare tire and yellow New York license
plate.10
    Pete’s mother observed the on-base car chase, wrote down the SUV’s
license plate number, and provided it to Alex’s mother.11 Alex’s mother called
her husband with the description of the car and the license plate number. He
was working on Camp Lejeune, and soon thereafter he located the SUV,
followed it to a work site, and notified base police. Minutes later security
arrived, identified the vehicle as belonging to the appellant, entered the
appellant’s workplace, and took the appellant into custody.
   While the Naval Criminal Investigative Service (NCIS) was investigating
the September and November on-base incidents involving Alex and Pete, they
notified local police and became aware of the April off-base incident involving
Ryan. Now having a suspect, the Jacksonville Police Department conducted a
photographic line-up with Ryan, who identified the appellant with “95
percent certainty” as the man driving the SUV who enticed him.12
                                    II. DISCUSSION
A. Uncharged propensity evidence
   The appellant argues the military judge erred when admitting uncharged
propensity evidence of his prior acquittals under MIL. R. EVID. 414 by
improperly conducting the MIL. R. EVID. 403 balancing test. We disagree.
   1. Admissibility of uncharged misconduct
    Three Military Rules of Evidence generally govern the relevance and
admissibility of evidence of conduct already litigated in a prior court-martial.
United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United States v. Hicks,
24 M.J. 3, 8 (C.M.A. 1987). First, “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” MIL.
R. EVID. 401. “The military judge may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the members,


   10   Id. at 318.
   11  The license plate number recorded by Pete’s mother nearly matched the
appellant’s plate number, with the exception of one letter. Record at 361-62.
   12   Record at 390, 441; Prosecution Exhibit 4, 5.


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                    United States v. Hoffmann, No. 201400067


undue delay, wasting time, or needlessly presenting cumulative evidence.”
MIL. R. EVID. 403. “Evidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” MIL. R. EVID. 404(b)(1).
But “[t]his evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident” MIL. R. EVID. 404(b)(2).
    In United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989), the Court of
Military Appeals articulated a three-part test for the admissibility of
uncharged misconduct under MIL. R. EVID. 404(b), including prior misconduct
of which the accused was acquitted:
   1. Does the evidence reasonably support a finding by the court members
that the appellant committed prior crimes, wrongs, or acts?
    2. What “fact . . . of consequence” is made “more” or “less probable” by the
existence of this evidence?
   3. Is the “probative value . . . substantially outweighed by the danger of
unfair prejudice”?
Id. at 109 (citations omitted).
    When an accused has been acquitted of conduct the government seeks to
present as evidence in a subsequent case, the acquittal is a factor in the test
for admissibility. “The fact of the prior acquittal may diminish the probative
value of the evidence, however, and should be considered by the military
judge when determining whether ‘probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the members, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.’” Hicks, 24 M.J. at 8-9
(citing to MIL. R. EVID. 403) (additional citations omitted). An accused also
has the right to prove that he or she was previously acquitted of the acts
admitted into evidence under MIL. R. EVID. 404(b). United States v. Cuellar,
27 M.J. 50, 56 (C.M.A. 1988).
   2. MIL. R. EVID. 414.
    We review the admissibility of evidence under MIL. R. EVID. 414 for an
abuse of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010).
“‘The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.’” United States v. Hurtado, No.
201500051, 2016 CCA LEXIS 112, at *5-6, unpublished op. (N-M. Ct. Crim.
App. 29 Feb 2016) (quoting United States v. White, 69 M.J. 236, 239 (C.A.A.F.
2010)), rev. denied, 76 M.J. 348 (C.A.A.F. 2017).


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                     United States v. Hoffmann, No. 201400067


    MIL. R. EVID. 414 permits the military judge to admit evidence that the
accused committed “any other offense of child molestation” and “may be
considered on any matter to which it is relevant.” MIL. R. EVID. 414. Thus,
“inherent in [MIL. R. EVID. 414] is a general presumption in favor of
admission.” United States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005) (citation
omitted).13
    Here the military judge combined his MIL. R. EVID. 414 propensity and
MIL. R. EVID 404(b) uncharged misconduct analysis into a single ruling for
efficiency. The same acquittal evidence was at issue under both evidentiary
rules, and the MIL. R. EVID. 414 requirements incorporate the key aspects of
the MIL. R. EVID. 404(b) test.
   3. MIL. R. EVID. 414 threshold requirements
    Before admitting evidence under MIL. R. EVID. 414, three initial threshold
requirements must be met: (1) the accused is charged with an offense of child
molestation within the meaning of MIL. R. EVID. 414(d); (2) the proffered
evidence is that the appellant committed another offense of child molestation
within the meaning of MIL. R. EVID. 414(d); and (3) the proffered evidence is
logically relevant under both MIL. R. EVID. 401 and 402. United States v.
Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013) (citations omitted). To meet the
second requirement, the military judge must conclude that the members
“could find by [a] preponderance of the evidence that the offenses occurred[.]”
United States v. Wright, 53 M.J. 476, 483 (C.A.A.F. 2000) (citing Huddleston
v. United States, 485 U.S. 681, 689-90 (1988)).
    The military judge found the threshold requirements were met both on
the record and in his written ruling. Regarding the first two prongs, he noted
that during an Article 39(a), UCMJ, session, the defense conceded that the
first two requirements under MIL. R. EVID. 414 were met “since at least one
of the charged allegations, as well as the uncharged misconduct, fall within
the definition of ‘child molestation’ under [MIL. R. EVID.] 414(d).”14 The


   13 The Berry court was specifically dealing with MIL. R. EVID. 413, but the court’s
analysis applies to both MIL. R. EVID. 413 and 414. See United States v. Tanner, 63
M.J. 445, 448-49 (C.A.A.F. 2006) (noting the similar legislative history with MIL. R.
EVID. 413, its “companion rule,” and finding that MIL. R. EVID. 414, like MIL. R. EVID.
413, establishes a presumption in favor of admissibility of evidence of prior similar
crimes in order to show predisposition to commit the designated crimes); United
States v. Luna, No. 201500423, 2017 CCA LEXIS 314, at *13-18, unpublished op. (N-
M. Ct. Crim. App. 9 May 2017), aff'd, _ M.J. _ . 2018 CAAF LEXIS 65 (C.A.A.F. Jan.
10, 2018) (summary disposition) (analyzing propensity evidence admitted under MIL.
R. EVID. 414 using the same standards applied to MIL. R. EVID. 413).
   14Appellate Exhibit (AE) XLVII at 3 n.4. See also Record at 159-60. The military
judge went on to note that MIL. R. EVID. 414(d)(2)(A) and (G) define “child


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                         United States v. Hoffmann, No. 201400067


military judge was satisfied that Alex and Pete’s expected testimony was
sufficient to meet the preponderance standard, explaining that “the
government offered documentary evidence in support of their response to this
motion including statements and depositions from all three minors, as well as
statements from [Alex’s] and [Pete’s] parents.”15 He found that based on this
evidence, the members could find by a preponderance of the evidence that the
offenses alleged by Alex and Pete occurred and were committed by the
appellant—despite the prior acquittals.
   This evidence not only met the first two prongs of the MIL. R. EVID. 414
threshold requirements, but also the first prong of the Reynolds MIL. R. EVID.
404(b) test. Recognizing this overlap in the admissibility tests, the military
judge found the MIL. R. EVID. 414 third threshold prong of logical relevance
mirrored the second Reynolds prong regarding facts of consequence. He
determined the acquittal evidence met both requirements:
         Additionally, this evidence may be relevant for its tendency to
         show motive, intent, common scheme or plan, or absence of
         mistake. Moreover, this evidence also provides the members
         with an understanding as to what the accused meant by “a
         quickie” since he made a hand gesture associated with fellatio
         when allegedly soliciting [Alex] and [Pete]. Finally, the
         evidence provides a complete picture as to how law
         enforcement first came to suspect the accused.16
Thus, the military judge concluded the evidence met all three MIL. R. EVID.
414 threshold requirements as well as the first two prongs of the Reynolds
test.
   4. MIL. R. EVID. 403 balancing test and the Wright/Berry factors
    Once the evidence meets the three threshold requirements under MIL. R.
EVID. 414, “the military judge is constitutionally required to also apply a
balancing test under [MIL. R. EVID.] 403” to determine whether the probative
value of the evidence is substantially outweighed by the danger of unfair
prejudice. Solomon, 72 M.J. at 179-80 (citing Berry, 61 M.J. at 95). When
conducting this balancing test, “the military judge should consider the
following non-exhaustive factors:”

molestation” as “any conduct prohibited by Article 120 and committed with a child, or
an attempt to engage in [said conduct] MIL. R. EVID. 414.” AE XLVII at 3 n.5
(internal quotation marks omitted)
   15   AE XLVII at 3.
   16   Id. at 4.




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                         United States v. Hoffmann, No. 201400067


         (1) strength of proof of the prior act (i.e., conviction versus gossip);
         (2) probative weight of the evidence;
         (3) potential for less prejudicial evidence;
         (4) distraction of the factfinder;
         (5) time needed for proof of the prior conduct;
         (6) temporal proximity;
         (7) frequency of the acts;
         (8) presence or lack of intervening circumstances; and
         (9) the relationship between the parties.
Id. at 180 (citing Wright, 53 M.J. at 482). This analysis of the MIL. R. EVID.
403 factors also encompasses the third prong of the Reynolds MIL. R. EVID.
404(b) test.
   If the “balancing test requires exclusion of the evidence, the presumption
of admissibility [that is inherent within MIL. R. EVID. 413] is overcome.”
Berry, 61 M.J. at 95 (citing Wright, 53 M.J. at 482-83). “When a military
judge articulates his properly conducted [MIL. R. EVID.] 403 balancing test on
the record, the decision will not be overturned absent a clear abuse of
discretion.” Solomon, 72 M.J. at 180 (citing United States v. Manns, 54 M.J.
164, 166 (C.A.A.F. 2000)).
   a. Strength of proof of the prior act (i.e., conviction versus gossip)
   In his written findings addressing the first Wright factor, the military
judge held the members could find the offenses alleged by Alex and Pete
occurred by a preponderance of the evidence and that their anticipated in-
court testimony and sworn depositions were more than mere gossip. He
acknowledged that the appellant was acquitted of the conduct at his first
trial, that the boys were and would be subject to “stringent defense
questioning during sworn depositions,” would again be subject to cross-
examination, and recognized that admission of this evidence was not barred
by the prior acquittals.17
   We agree. The preponderance of evidence standard in this factor is a much
lower showing than the beyond a reasonable doubt standard considered by
the members at the first trial. The trial judge carefully weighed the
acquittals, the additional evidence provided on the motion, and the necessary
crucible of cross-examination in the rehearing.



   17   AE XLVII at 4.


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                    United States v. Hoffmann, No. 201400067


   b. Probative weight of the evidence
   In addressing the probative weight of the evidence, the military judge
stated that the evidence was probative “not only to the accused’s propensity
to engage in this conduct, but also as to motive, intent, common scheme or
plan, or absence of mistake” related to the MIL. R. EVID. 404(b) test.18 He also
noted it was important for the members so they would understand what the
appellant meant by “a quickie” and how the appellant came to the attention
of law enforcement.19 Further, he concluded that the probative weight was
heightened by the similarities to the charged offense. All three alleged
victims were young boys approached by a man driving a silver or light colored
SUV while walking home alone home from school. The driver solicited sexual
acts using hand gestures and verbal comments while driving by them.
   We agree with the military judge’s assessment of the probative value of
this evidence. The conduct during the three incidents was strikingly similar,
making the evidence highly probative, but not unfairly prejudicial.20 This
type of evidence is exactly what MIL. R. EVID. 414 was intended to admit.
Though uncharged misconduct at this trial, it also demonstrates permissible
government theories of culpability. The members were informed of the prior
acquittals and properly instructed on how to use the evidence for propensity
and motive, intent or common scheme consideration.
   c. Potential for less prejudicial evidence; distraction of the factfinder; time
needed for proof of the prior conduct
   Like the first two Wright factors above, we agree with the military judge’s
conclusion that there was no less prejudicial evidence. Like the military
judge, we find distraction to the factfinder and time needed to prove the prior
conduct to be linked since the primary consideration for both was Alex’s and
Pete’s testimony. The judge noted in his ruling that he was sensitive to
overuse of evidence of the prior acquittals and would limit distraction
through tailored examinations and limiting instructions. He followed through
on this commitment at trial, ensuring a minimum amount of time was
focused on propensity and providing limiting instructions during both the
testimony and in his final instructions.
   The unique facts of this case also properly allowed the prior acquittal
evidence under MIL. R. EVID. 404(b). While the trial counsel did discuss the
three boys in his opening statement and closing argument, his theme was

   18   Id.
   19   Id.
   20 See United States v. Oakley, No 201200299, 2015 CCA LEXIS 154, at *33-34
(N-M. Ct. Crim. App. 21 Apr 2015).


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                     United States v. Hoffmann, No. 201400067


focused much more on opportunity, modus operandi, and pattern of the
appellant’s behavior given the similarities of the encounters rather than
propensity. The appellant contends that this government emphasis was
unfairly prejudicial, but his defense theory of misidentification actually made
the pattern theme under MIL. R. EVID. 404(b) arguably more relevant to the
members than the same information admitted as propensity evidence. The
evidence did not inflame the members or cause confusion, rather it
highlighted the three incidents for the members to consider along with the
rest of the evidence.
    d. Temporal proximity; frequency of the acts; presence or lack of
intervening circumstances; relationship between the parties
   Concerning these Wright factors, the military judge’s written findings
noted that Alex and Pete made allegations days apart and approximately five
months after the charged misconduct. There were no intervening
circumstances that would diminish the probative value of the evidence, and
the parties were not related. The military judge concluded that these factors
weighed in favor of admission.
   Again, we agree. The temporal proximity is highly probative given their
similarities but not unfairly so.
   We find that the military judge properly conducted the MIL. R. EVID. 403
balancing test and neither erred nor abused his discretion by admitting the
prior acquittals under either MIL. R. EVID. 414 or 404(b). His measured
analysis on the record and in his written ruling was reasonable and not
clearly erroneous. The similarities between the two incidents from the prior
trial provided a strong nexus to the charged offenses, and the military judge
exercised appropriate sensitivity to the acquittal evidence.21 He ensured the
members were aware of the acquittals in his instructions (over government
objection) and limited questioning as appropriate to avoid undue delay and
confusion of the members.




   21  See United States v. Griggs, 51 M.J. 418, 420 (C.A.A.F. 1999) (prior acquittal
evidence is not per se barred as evidence of prior acts); United States v. James, 63
M.J. 217, 221 (C.A.A.F. 2006) (no temporal limitation on the admissibility of specific
uncharged child molestation misconduct; it can be prior or subsequent to the charged
acts as MIL. R. EVID. 414 evidence admissibility should be liberally construed); and
United States v. Morrison, 52 M.J. 117, 122-23 (C.A.A.F. 1999) (where evidence is
offered to show modus operandi, there must be a high degree of similarity between
the extrinsic offense and the charged offense).


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                         United States v. Hoffmann, No. 201400067


   B. Military judge’s instructions
   The appellant next claims the military judge erred by failing to instruct
the members that they were required to find the uncharged propensity
misconduct occurred by a preponderance of the evidence. We disagree.
   1. The instruction
   The military judge relied in part on United States v. Williams, 75 M.J.
621 (A. Ct. Crim. App. 2016)22 in determining that “the military judge does
not have to instruct that the members find by preponderance of the evidence
that the propensity evidence did or did not occur pursuant to [MIL. R. EVID.]
413 or 414[.]”23 After informing defense counsel that he intended to use the
defense’s proposed limiting instruction except for that sentence, he asked if
the defense agreed to the limiting instruction. The trial defense counsel
replied:
              DC: With the one strike, yes, sir.
              MJ: No objections to any other aspect of it?
              DC: No, sir.24
   Before their deliberations on findings, the military judge instructed the
members concerning their use of the uncharged acquittal evidence. They
could consider the uncharged sexual misconduct pursuant to MIL. R. EVID.
414, as evidence of the appellant’s propensity to commit the charged sexual
misconduct, and pursuant to MIL. R. EVID. 404(b), as evidence of the
appellant’s identity, motive or common scheme or plan:
             You heard evidence that the accused may have committed
         other offenses upon [Alex] and [Pete]. The accused is not
         charged with these other offenses and was previously acquitted
         of these offenses at a prior proceeding. You may, however,
         consider the evidence of those offenses involving [Alex] and
         [Pete] for its bearing on any matter to which it is relevant in
         relation to the charged offenses. You may consider the evidence
         related to [Alex] and [Pete] for its tendency, if any, to show the
         accused’s propensity or predisposition to engage in similar
         offenses, as well as its tendency, if any, to establish among
         other possible things, identity, motive, or common scheme or

   22 The case was reversed and remanded in light of United States v. Hills, 75 M.J.
350 (C.A.A.F 2016) due to charged propensity misconduct which is not the issue in
the present case. United States v. Williams, 75 M.J. 430 (C.A.A.F. 2016).
   23   Record at 490.
   24   Id. at 518.


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                       United States v. Hoffmann, No. 201400067


         plan. You may not, however, convict the accused solely because
         you believe he committed these other offenses, or solely
         because you believe the accused has a propensity or
         predisposition to engage in similar acts. In other words, you
         cannot use this evidence to overcome a failure of proof in the
         government’s case, if you perceive any to exist.25
   2. The law
    “Whether a panel was properly instructed is a question of law we review
de novo.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (citation
omitted). Whether an appellant has waived an issue is a question of law we
review de novo. United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017)
(citation omitted).
    “Whereas forfeiture is the failure to make the timely assertion of a right,
waiver is the intentional relinquishment or abandonment of a known right.”
United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (citations and
internal quotation marks omitted). When an appellant has “intentionally
waive[d] a known right at trial, it is extinguished and may not be raised on
appeal.” Id. Forfeited objections to evidence are reviewed for plain error,
which exists where: (1) an error was committed; (2) the error was plain, clear,
or obvious; and (3) the error resulted in material prejudice to substantial
rights. United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007) (citing
United States v. Powell, 49 M.J. 460, 463–65 (C.A.A.F. 1998)).
   Here the appellant concedes he did not object to the instructions at trial
but argues the plain error standard applies.26 Assuming without deciding
that the appellant forfeited, rather than waived, his right to object to the
military judge’s instructions, we find no error.
   3. Plain error analysis
    The appellant contends that the military judge’s instructions should have
contained the following language: “[t]his evidence may have no bearing on
your deliberations unless you first determine by a preponderance of the
evidence, that is more likely than not, these uncharged offenses occurred.”27
   The military judge discussed the defense’s request to specifically instruct
the members regarding their determination of whether the uncharged


   25   Id. at 615.
   26   United States v. Davis, 76 M.J. 224, 229 (C.A.A.F. 2017).
   27 Appellant’s Supplemental Brief of 16 Feb 2018 at 3 (emphasis added) (citing
Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at ¶ 7-13-1 (20 Mar
2015)).


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                       United States v. Hoffmann, No. 201400067


propensity offenses occurred and by what standard. However, he believed
procedurally the initial requirement had been fulfilled once he made the
admissibility analysis under MIL. R. EVID. 414 and explained to the members
that the appellant had been acquitted of those offenses.28 Although he
partially relied on Williams, he also compared the requested instruction to
more traditional uncharged misconduct instructions under MIL. R. EVID.
404(b). He noted the members are generally permitted to give their own
assignment of weight to uncharged MIL. R. EVID. 404(b) evidence once the
judge has properly determined admissibility.
   In post-Hills courts-martial, military judges no longer allow charged
evidence to act as propensity evidence for other charged offenses.29 While
Hills focused on charged misconduct establishing propensity evidence for
other charged misconduct—which is not the issue here—the instructions
were found to be confusing in part due to similar language the appellant now
suggests was missing in his case. We recognize that the charged propensity
evidence at issue in Hills carried a much greater risk of muddled instructions
than what the appellant proposed here regarding uncharged misconduct, but
he offers no authority for his position that the military judge must instruct
the members using the preponderance standard.30
    Accordingly, we find that the military judge did not commit error, and
certainly not plain or obvious error, when instructing the members on how to
use the uncharged misconduct evidence as both uncharged misconduct and
propensity evidence. Notably, after our superior court’s decision in Hills, the
Military Judge’s Benchbook was revised and the language instructing the




   28   Record at 490, 522, 615.
   29 Hills, 75 M.J. at 357 (“Quite simply, we hold not only that charged offenses are
not properly admitted under M.R.E. 413 to prove a propensity to commit the charged
offenses, but also that the muddled accompanying instructions implicate
‘fundamental conceptions of justice’ under the Due Process Clause by creating the
risk that the members would apply an impermissibly low standard of proof,
undermining both ‘the presumption of innocence and the requirement that the
prosecution prove guilt beyond a reasonable doubt,’ Wright, 53 M.J. at 481.”
   30  United States v. Schroder, 65 M.J. 49, 54, 56 (C.A.A.F. 2007) (finding the
military judge is not “required to disaggregate the [414] instruction” and that a MIL.
R. EVID. 414 instruction must state “the introduction of such propensity evidence
does not relieve the government of its burden of proving every element of every
offense charged. Moreover, the factfinder may not convict on the basis of propensity
evidence alone”). We note both of these requirements were contained in the military
judge’s instructions here.


                                         13
                        United States v. Hoffmann, No. 201400067


members to determine by “a preponderance of the evidence, that is more
likely than not, these uncharged offenses occurred” was omitted.31
    This revision brought the Benchbook instructions into alignment with
those applicable in the Article III federal courts.32 The military judge’s
instruction—over government objection—reminding the members that the
appellant was acquitted of the uncharged misconduct/propensity evidence
ensured that the members understood the rules of its use, the presumption of
innocence on the charged offenses, and the requirement that the prosecution
prove guilt beyond a reasonable doubt.33 The appellant was charged with
three offenses but convicted of two—which reinforces our belief that the
members understood and properly followed the judge’s instructions.
C. Improper referral
    In his third AOE, the appellant argues the military judge erred when he
failed to preclude Col W, the staff judge advocate (SJA), from participation in
areas of pretrial decision-making, and that such an error resulted in the
improper referral of the appellant’s charges to general court-martial. We
disagree.
    Article 34, UCMJ, and RULE FOR COURTS-MARTIAL (R.C.M.) 406 require
the CA to submit all preferred charges to an SJA for “consideration and
advice” before referring any charge to a general court-martial for trial. MCM,
UNITED STATES (2012). Such pretrial advice must be provided in writing and
signed by the SJA to enable the CA to proceed. R.C.M. 406(b).34 Whether an
individual is disqualified from acting as an SJA is a legal question reviewed
de novo. United States v. Stefan, 69 M.J. 256, 258 (C.A.A.F. 2010).



    31 See Dept. of the Army Pamphlet 27-9 at 1105-1106 (10 Sep. 2014, 20 Mar.
2015, and Feb. 2018). This instruction is commonly referred to by practitioners as “7-
13-1. Other Crimes, Wrongs, or Acts Evidence.” Although the Benchbook is not
legally binding, it does highlight military justice practitioners’ commonly held beliefs
on the state of the UCMJ.
    32 Huddleston, 485 U.S. at 690 (a trial court “simply examines all the evidence in

that case and decides whether a jury could reasonably find the conditional fact . . . by
a preponderance of the evidence”).
    33   The appellant does not claim prejudice and we agree there is none.
    34 “The staff judge advocate is personally responsible for the pretrial advice and

must make and independent and informed appraisal of the charges and evidence in
order to render the advice. . . . [B]ut the staff judge advocate is, unless disqualified,
responsible for it and must sign it personally. Grounds for disqualification in a case
include previous action in that case a preliminary hearing officer, military judge,
trial counsel, defense counsel, or member.” R.C.M. 406(b) Discussion.


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                     United States v. Hoffmann, No. 201400067


   1. Col W’s role
    The facts underlying this claim and key to its resolution are undisputed.35
In approximately July 2012, after the preferral of charges and Article 32
hearing for the appellant’s first court-martial, Col W assumed the Regional
Trial Counsel (RTC) billet at the Legal Services Support Section East (LSSS-
E). In this capacity, Col W “oversaw all prosecutions within the geographic
region encompassing Camp Lejeune,”36 and was delegated detailing authority
over the trial counsel stationed within the region.
    While Col W was serving as RTC, Major (Maj) L requested to be detailed
to the appellant’s first court-martial to assist with pretrial motions. Col W
granted his request, detailing Maj L to join, but not supplant, the acting trial
counsel originally detailed by the senior trial counsel. Beyond this one
instance, “[n]either Col [W][,] nor any other member of the prosecution recall
the extent that [he] personally participated in the prosecution of the
[appellant’s] case (if at all).”37 Col W completed his roughly eight-month RTC
tour shortly thereafter—months before the appellant’s first trial began.38
   However, that did not mark the end of his involvement with the
appellant’s case. When our superior court later authorized a rehearing on the
charges involving Ryan, Col W was the SJA for the General Court-Martial
Convening Authority. On 3 May 2016, Col W prepared an Article 34, UCMJ,
pretrial advice letter regarding the appellant’s rehearing. Consistent with Col
W’s recommendation, the CA referred the charges to a general court-martial.
   2. The military judge’s ruling
    On 8 September 2016, the appellant filed a motion claiming improper
referral of charges, asserting that Col W was disqualified from acting as SJA
due to his previous role as RTC during the appellant’s first court-martial.
    The military judge granted the motion in part in a thorough written
ruling. First, he concluded “in the exercise of an abundance of caution, that
[Col W] was disqualified from providing the pretrial advice” for the

   35 In his written ruling on Col W’s disqualification, the military judge adopted the
findings of fact from both defense counsel’s motion and government counsel’s
response. AE XLII at 1, n.1 (“To the extent that a factual dispute exists between the
two documents[,] the Court finds that this dispute is inconsequential to the
resolution of this issue.”).
   36  Id. This region included Camp Lejeune, Marine Corps Air Station Cherry
Point, and Marine Corps Recruiting Depot Parris Island.
   37   Id.
   38 AE XXXIII at 2 (“[H]e ceased being the RTC on 14 March 2013” and the first
court-martial “was conducted in August 2013”).


                                          15
                        United States v. Hoffmann, No. 201400067


appellant’s rehearing.39 He noted that although it was unclear “whether he
performed the duties of a trial counsel while fulfilling his role as RTC[,]” the
billet itself “implies that he played some role sufficient to make
disqualification appropriate.”40 Specifically, the military judge surmised that
Col W “likely remained cognizant of trial strategy” given his direct
supervisory responsibility, the close physical proximity to the trial counsel,
the severity of the charges, and the discretion exercised in detailing Maj L.41
    Second, the military judge denied the appellant’s request to dismiss the
charges. Instead, he ordered the provision of new Article 34, UCMJ, advice,
concluding it was “only necessary for a qualified SJA to provide the
appropriate pretrial advice, and for the [CA] to affirm whether he desires to
adhere to his previous decision to refer the charges.”42 In so doing, the
military judge relied on United States v. Loving, 41 M.J. 213, 288 (C.A.A.F.
1994), which held that factual errors in an Article 34, UCMJ, letter are not
jurisdictional and therefore may be cured through supplemental advice
without re-referral.
   As directed by the military judge, an uninvolved, qualified SJA prepared
a new Article 34 advice letter. This second advisement entailed the same
conclusions on the sufficiency of the charges, evidence, and jurisdiction, with
the same recommendation. Armed with this new Article 34 advice, the CA
reaffirmed his original decision referring the charges to general court-
martial.
   3. Disqualification of the SJA
    On appeal, the appellant argues that the charges should have been
dismissed as a result of Col W’s narrow disqualification and likely pretrial
involvement prior to the provision Article 34 advice—decisions to retry the
case and to continue pretrial confinement.43 The government opposes,
arguing the provision of new Article 34, UCMJ, advice prepared by a
different judge advocate remedied any potential prejudice.
   In United States v. Hardin, 7 M.J. 399, 405 (C.M.A. 1979) the issue was
“whether the mere fact that government counsel at the pretrial investigation
participated in the preparation of this otherwise sound pretrial advice


   39   AE XLII at 2.
   40   Id.
   41   Id.
   42   Id.
   43  The appellant makes this argument, but provides no evidence of Col W’s
involvement in these two areas. Appellant’s Brief of 18 Sep 2017 at 32.


                                         16
                     United States v. Hoffmann, No. 201400067


requires automatic reversal of the appellant’s conviction.” The court
answered in the negative, finding that the predecessor to the R.C.M. 406
Discussion, ¶ 35b,44 was “not a codal proscription and accordingly, if error, it
can hardly be considered anything but ordinary.” Id.
    Instead, Hardin endorsed a more pragmatic approach, recognizing that to
“find no error in the contents of the pretrial advice but per se error in the one
who writes it is perception for perception’s sake alone.” Id. at 404. Thus,
“[t]he advice must be tested for legal competence and accuracy as well as the
possibility . . . that the [CA] might have been misled in his prosecutorial
decision as a result of some bias in the advice stemming from the [SJA’s]
prior involvement in the case.” Id. at 405. In other words, “it is the lawfulness
of their prosecutorial conduct performed in a professional manner which
must be tested under Article 34, and not their functional inclinations at this
[pretrial] stage of the proceedings.” Id. at 404.
    This approach recognizes that the SJA’s pretrial advice is “primarily [a]
prosecutorial codal tool.” Id. at 403. As such, the SJA shall not be elevated “to
a state of absolute impartiality required in the strict sense for a trial judge,”
but rather acts properly like a prosecutor when “advis[ing] the referral
authority whether he may legally proceed if he so desires.” Id. at 403-04
   4. Prejudice
   The military judge’s ruling remedied any deficiency—real or perceived—
resulting in no prejudice to the appellant.45
    Here, the CA’s decision to order a rehearing did not constitute “ill-
considered action,” nor were the referred charges regarding Ryan “ordered to
trial due to inadvertence or mistake.” United States v. Smith, 33 C.M.R. 85,
89 (C.M.A. 1963) (citations omitted). As part of his written ruling, the
military judge ordered a qualified SJA to provide fresh pretrial advice for the
CA to then affirm or revoke his referral decision via written memorandum.
One week later, Maj Z provided just that, and the CA affirmed his decision to
refer.
   Even proven errors in pretrial advice, whether found within the four
corners of the Article 34, UCMJ, advice or in the status of the author, may be



   44 Paragraph 35b, MANUAL FOR COURTS-MARTIAL, UNITED STATES (1969) (Revised
Edition) (“No person who has acted as investigating officer, military judge, or
member of the court, prosecution, or defense in any case may later act as staff judge
advocate or legal officer in the same case.”).
   45 Notably, the appellant does not allege prejudice and we find no material
prejudice to the appellant’s substantial rights.


                                         17
                        United States v. Hoffmann, No. 201400067


cured through supplemental advice.46 Likewise, it would defy all notions of
judicial efficiency to mandate the per se withdrawal of charges without a
minimal showing of prejudice. Undoubtedly, the very purpose in requiring
the parties at trial to move for appropriate relief based on defects in Article
34, UCMJ, advice before the entry of pleas47 is “to prevent otherwise correct
trials from being vitiated by defects in ancillary proceedings.” United States
v. Klawuhn, 33 M.J. 941, 943 (N.M.C.M.R. 1991). Thus, we agree with the
military judge that the charges were properly referred and need not have
been withdrawn or dismissed.
    After reviewing the record, we conclude that Article 34, UCMJ, advice
was provided by Maj Z to the CA before the appellant’s charges were again
referred to general court-martial. Therefore, there is neither improper
referral nor prejudice to the appellant.
D. Military judge recusal
   The appellant’s fourth claimed error focuses on a past position held by the
military judge before presiding over the rehearing. Specifically, the appellant
argues that in light of his former role as the Officer-in-Charge (OIC) of the
LSSS during the investigation stage of the appellant’s first court-martial, the
military judge “should have recused himself and avoided any appearance of
conflict.”48 We disagree.
    We review a military judge’s decision not to recuse himself for an abuse of
discretion. United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (citing
United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001)). “‘An accused has a
constitutional right to an impartial judge.’” Butcher, 56 M.J. 90 (quoting
United States v. Wright, 52 M.J. 136, 140 (C.A.A.F. 1999)). “There is a strong
presumption that a judge is impartial, and a party seeking to demonstrate
bias must overcome a high hurdle[.]” United States v. Quintanilla, 56 M.J. 37,
44 (C.A.A.F. 2001). Accordingly, the “moving party has the burden of


    46See, e.g., Loving, 41 M.J. at 288 (“We hold that the factual errors in the original
pretrial advice were not jurisdictional, were corrected by the supplemental advice,
and were not prejudicial to appellant.”); United States v. Gebert, No. 201500381, 2016
CCA LEXIS 662, at *19-22 n.47, unpublished op. (N-M. Ct. Crim. App., 15 Nov 2016)
(“We also find no support for the appellant’s assertion that the originally defective
Article 34, UCMJ, advice in some way “baked” prejudice into the process that wasn’t
remedied by the issuance of new advice”), rev. denied, 76 M.J. 172 (C.A.A.F. 2017).
    47R.C.M. 905(b)(1) requires “objections based on defects (other than jurisdictional
defects) in the . . . referral of charges” to be raised before a plea is entered, and
R.C.M. 905(b)(1), Discussion explicitly states that such a defect includes “inadequate
pretrial advice.”
    48   Appellant’s Brief at 39.


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                        United States v. Hoffmann, No. 201400067


establishing a reasonable factual basis for disqualification. More than a mere
surmise or conjecture is required.” Wilson v. Ouellette, 34 M.J. 798, 799
(N.M.C.M.R. 1991) (citing Untied States v. Allen, 31 M.J. 572, 601
(N.M.C.M.R. 1990), aff’d, 33 M.J. 209 (C.M.A. 1991)).
   Disqualification of a military judge may occur for either the appearance of
bias or actual bias. R.C.M. 902(a) and (b). “The appearance standard is
designed to enhance public confidence in the integrity of the judicial system.”
Quintanilla, 56 M.J. at 45 (citing Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847, 860 (1988)). “Th[is] rule also serves to reassure the
parties as to the fairness of the proceedings[.]” Id.
   1. The military judge’s ruling
    At an Article 39(a), UCMJ, session during appellant’s second trial,
defense counsel conducted voir dire of the military judge. The military judge
acknowledged that he had served as the LSSS OIC from October 2010
through May 2012, before the appellant’s charges were preferred in mid-May
2012. In this capacity, he supervised the trial and defense sections, among
several others. As part of his supervisory responsibilities, the military judge
also served as the reporting senior for the Military Justice Officer (MOJO)
and was copied on all of the MOJO’s ongoing NCIS investigations. The MOJO
at the time “was delegated authority to detail cases[,] generally oversaw the
prosecutorial function at the LSSS. . . . and would periodically brief [the OIC]
on important cases that he or others were working on[.]”49 After eliciting this
information from the military judge, the trial defense counsel verbally
requested that he disqualify himself under R.C.M. 902(a).
   The military judge denied the defense’s motion after having “thought
hard” about his previous role because he had “absolutely no recollection of
participating in any aspect of the investigation, pre-preferral process, or
preferral of the charges in this case.”50
    Unsatisfied, the trial defense counsel filed a written motion for
reconsideration. After considering this motion, the government’s response,
the additional voir dire by trial counsel, and the oral arguments of both
parties, the military judge again declined to recuse himself, making findings
of fact and conclusions of law regarding his impartiality in an even more
thorough verbal ruling. The military judge found the “fact that NCIS includes
‘OIC/LSSS’ on the distribution list for their reports of investigation has little
significance, as [he] certainly [does] not recall receiving copies” of every single



   49   Record at 99.
   50   Id. at 15-16.


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                       United States v. Hoffmann, No. 201400067


one during his tenure.51 The military judge also reemphasized that neither he
nor the MOJO “can recall ever discussing this matter back in 2011 or 2012,
and to speculate as to whether [they] did talk about it over four years ago
would be pure conjecture.”52
   2. Appearance of bias
    The appellant raises solely the appearance of bias in his appeal. That test
under R.C.M. 902(a) is an objective standard concerning whether there was
‘“[a]ny conduct that would lead a reasonable man knowing all the
circumstances to the conclusion that the judge’s impartiality might
reasonably be questioned.’” Butcher, 56 M.J. at 91 (quoting United States v.
Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982)) (internal quotation marks omitted).
While performing this test, we consider the facts and circumstances through
an objective lens: “not in the mind of the military judge himself, but rather in
the mind of a reasonable man . . . who has knowledge of all the facts.” Wright,
52 M.J. at 141 (citations and internal quotation marks omitted). Thus, the
“judge’s statements concerning his intentions and the matters upon which he
will rely are not irrelevant to the inquiry.” Id. (citations omitted)
   On appeal, the appellant remains unable to provide any meaningful
evidence to support his assertion that the military judge exuded the
appearance of bias in order to elevate his claim above conjecture. The
appellant’s brief is an almost verbatim reiteration of the challenge at trial53
and does not reveal any new facts that would suggest a lack of impartiality.
The appellant provides no evidence, relying instead on conclusory statements
that the possibility of the military judge’s awareness of the facts of the case
creates an apparent bias.54
    There is simply no evidence that the military judge was biased or had the
appearance of bias; he was firm but fair to both sides. The full record
discloses that the military judge applied the law correctly and even-handedly.
We find that the “court-martial’s legality, fairness, and impartiality” were not
put into doubt. United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000)
(citations and internal quotation marks omitted).
   Based on our review of the record and in light of the actions taken by the
military judge, we find that no reasonable observer, seized of the pertinent

   51   Id. at 100.
   52   Id. at 99.
   53   Appellant’s Brief at 34-39; Appellate Exhibit XXVII at 1-5.
   54 Record at 93-94 (“it is not an unreasonable stretch to believe that the military
judge was certainly aware of the case” because “it is possible that there was a general
discussion of the facts” and “the reality is that the optics here just aren’t good”).


                                           20
                       United States v. Hoffmann, No. 201400067


facts, could reasonably question the military judge’s impartiality. We
therefore hold that the military judge did not abuse his discretion in denying
the appellant’s recusal motion. We further conclude that a reasonable person
observing this court-martial would have full confidence in the judicial
process.
E. Sentence disparity and severity
    In his final AOE, the appellant argues that his sentence is “inappropriate
and highly disparate from a closely related” Army case with an “extremely
similar fact pattern,” which entitles him to relief.55 Because he has since
completed his confinement, he asks this court to set aside his dishonorable
discharge.56 We decline to do so.
   1. Sentence disparity
    A narrow exception to the general principle of non-comparison regarding
sentences exists ‘“in those rare instances in which sentence appropriateness
can be fairly determined only by reference to disparate sentences adjudged in
closely related cases.”’ United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999)
(quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). When
requesting relief by way of this exception, an appellant’s burden is twofold:
the appellant must demonstrate “that any cited cases are ‘closely related’ to
his or her case and that the resulting sentences are ‘highly disparate.’” Id.
Only if the appellant succeeds on both prongs will the burden shift to the
government to “show that there is a rational basis for the disparity.” Id.
    First, for cases to qualify as closely related, “the cases must involve
offenses that are similar in both nature and seriousness or which arise from a
common scheme or design.” United States v. Kelly, 40 M.J. 558, 570
(N.M.C.M.R. 1994). “This threshold requirement can be satisfied by evidence
of “co[-]actors involved in a common crime, servicemembers involved in a
common or parallel scheme, or some other direct nexus between the
servicemembers whose sentences are sought to be compared[.]” United States
v. Pena, No. 201700327, 2018 CCA LEXIS 279, at *4 (N-M. Ct. Crim. App. 5
Jun 2018) (quoting Lacy, 50 M.J. at 288-89 (finding cases qualified as closely
related “where appellant and two other Marines engaged in the same course
of conduct with the same victim in each other’s presence”)); United States v.
Williams, No. 201600197, 2017 CCA LEXIS 702, at *8, unpublished op. (N-M.
Ct. Crim. App. 16 Nov 2017) (finding cases did not qualify as closely related
where “the appellant’s offenses and those committed by the other five Marine


   55   Appellant’s Brief at 40, 44.
   56 The case cited for sentence comparison resulted in a bad-conduct discharge and
the appellant is requesting that we set aside his dishonorable discharge.


                                        21
                     United States v. Hoffmann, No. 201400067


E-8s took place at different times, at different commands, in different parts of
the world, and involved unrelated women under differing factual
circumstances”).
    Second, when assessing disparity among sentences, we look only to
adjudged sentences, rather than those approved or bargained for in a pre or
post-trial agreement: “[a]djudged sentences are used because there are
several intervening and independent factors between trial and appeal—
including discretionary grants of clemency and limits from pretrial
agreements—that might properly create the disparity[.]” United States v.
Roach, 69 M.J. 17, 21 (C.A.A.F. 2010). Accordingly, we “refrain from second
guessing or comparing a sentence that flows from a lawful pretrial agreement
or a CA’s lawful exercise of his authority to grant clemency to an appellant.”
United States v. Widak, No. 201500309, 2016 CCA LEXIS 172, at *7,
unpublished op. (N-M. Ct. Crim. App. 22 Mar 2016) (citations omitted).
    Here, the appellant requests we compare his sentence to one other
sentence awarded in United States v. Rodriquez, No. 20130577, 2015 CCA
LEXIS 551, unpublished op. (A. Ct. Crim. App. 1 Dec 2015). In Rodriquez, an
Army specialist “followed minor girls walking on post in his car, and then
approached them and talked to them.” Id. at *3. He received a sentence of a
bad-conduct discharge, confinement for two years, and reduction to pay grade
of E-1 for his offenses, which included one specification of sexual abuse of a
child by committing a lewd act.57
    We find the appellant has failed to carry his preliminary burden to show
this cited case is closely related to his own. His analogy is insufficient—the
two offenders were not co-conspirators, involved in a common criminal
scheme, pursuing a shared victim, or otherwise acting in concert to establish
the prerequisite “direct nexus” with one another. Rather, the two men are
from different branches of service, different coasts, and were charged under
different versions of Article 120, UCMJ. Whether cases are closely related is
a legal question that cannot be satisfied by some semblance of factual
similarity between two independent actors. See United States v. Durant, 55
M.J. 258, 262 (C.A.A.F. 2001).




   57 The appellant in Rodriquez was convicted of “one specification of failing to obey
a lawful order, one specification of sexual abuse of a child by committing a lewd act,
and six specifications of wrongfully annoying and molesting a minor in violation of
California Penal Code § 647.6(a)(1), in violation of Articles 92, 120b, and 134,”
UCMJ, 10 U.S.C. §§ 892, 920b, and 934 (2012). Id. at *1-2. The Army Court of
Criminal Appeals set aside the specifications charged under the California Penal
Code as preempted by Article 120(b), UCMJ, and reassessed the sentence. Id. at *7-8.


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                    United States v. Hoffmann, No. 201400067


    Assuming the appellant’s case was closely related to Rodriquez, he also
fails to satisfy the second prong of the test of proving a wide disparity
between the two adjudged sentences “that are unsupported by good and
cogent reasons.” Kelly, 40 M.J. at 570. The appellant overlooks the procedural
history in Rodriquez, specifically the key factor that Rodriquez had
negotiated a pretrial agreement and pled guilty to all offenses with a military
judge; whereas the appellant pled not guilty and was sentenced by members.
Because “pretrial agreements involve highly subjective processes which this
court is ill-equipped to second guess[,]” we must refrain questioning the
disparity alleged here. Widak, 2016 CCA LEXIS 172, at *7.
    Thus, the appellant has not sustained either part of his dual burden of
showing a closely related case with an adjudged sentence to warrant
comparison. Plainly, “[t]he mere similarity of offenses is not sufficient.”
United States v. Washington, 57 M.J. 394, 401 (C.A.A.F. 2002) (citation
omitted). We are not convinced that the appellant suffered a miscarriage of
justice solely because another offender took advantage of the benefits and
relief of a pretrial agreement by accepting full responsibility for his actions,
while the appellant declined to do so.
   2. Sentence severity
    Having found the appellant’s request for comparison unpersuasive, we
now evaluate the appellant’s sentence on its own facts as part of our due
diligence under Article 66(c), UCMJ. See United States v. Baier, 60 M.J. 382,
384-85 (C.A.A.F. 2005).58 We review issues of sentence appropriateness de
novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
    “Sentence appropriateness involves the judicial function of assuring that
justice is done and that the accused gets the punishment he deserves.” United
States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires our
“individualized consideration of the particular accused ‘on the basis of the
nature and seriousness of the offense and the character of the offender.’”
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United
States v. Mamaluy, 27 C.M.R. 176, 180-81 (C.M.A. 1959)). In making this
assessment, we analyze the record as a whole. Healy, 26 M.J. at 395.
Notwithstanding our significant discretion for determining appropriateness,
we must remain mindful that we may not engage in acts of clemency. United
States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).



   58 See also United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (“However
proper it may be for the [CA] and [Courts of Criminal Appeals] to consider sentence
comparison as an aspect of sentence appropriateness, it is only one of the many
aspects of that consideration”) (citations omitted).


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                      United States v. Hoffmann, No. 201400067


   Looking to his offenses, our superior court has recognized that “taking
indecent liberties [with a child] is the first step toward more serious sex
crimes of a perverted nature[.]” United States v. Brown, 13 C.M.R. 10 (C.M.A.
1953). Here, the appellant targeted young and vulnerable children for his
indecent communications with the hope that his words would lead to more.
His two convictions involving Ryan demonstrate a calculated attempt to
entice a teenage boy to engage in oral sexual acts without regard for the
impact on his impressionable victim. He repeatedly circled around the block,
unwilling to accept Ryan’s refusal to participate until Ryan ran home to
prevent a possible fifth drive-by. Despite these actions, he remained largely
unremorseful throughout his unsworn statement, making a general apology59
and claim that he had “changed from [his] experiences.”60
   The appellant faced the possibility of 35 years’ confinement and a
dishonorable discharge. Given the circumstances of his offenses, we find that
the approved 7 years’ confinement is within the bounds of reason. Regarding
the dishonorable discharge, the appellant’s actions severely compromised his
standing as a member of society and the armed forces. We too are satisfied
that these offenses warrant the severe punishment that such a discharge
represents.
    Having given our individualized consideration of the appellant, the
appellant’s record of service, the nature and seriousness of the offenses, and
all other matters contained in the record of trial, we find the sentence to be
appropriate for this offender and his offenses. Granting sentence relief at this
point would be to engage in clemency, and we decline to do so. Healy, 26 M.J.
at 395-96.61




   59 The appellant said, “I would like to apologize for any mistakes I’ve made, any
pain I have caused.” Record at 672. Otherwise, he did not express any other
signs/words of remorse or concern for his child victim.
   60   Id. at 674.
   61 We note that here the CA in this case was not constrained in his clemency
consideration. Because the appellant’s offenses occurred in 2011, the CA was vested
with full Article 60, UCMJ, authority to “modify or dismiss charges and modify the
sentence.” United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam). The
CA declined to exercise this unfettered authority and instead approved the sentence
authorized by the law. Although the appellant was sentenced to 10 years’
confinement on rehearing, he was sentenced to 7 years’ confinement at his first court-
martial and therefore the CA properly approved the 7 vice 10 years’ confinement.




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               United States v. Hoffmann, No. 201400067


                          III. CONCLUSION
The findings and sentence are affirmed.
Senior Judge HUTCHISON and Judge SAYEGH concur.
                                  For the Court




                                  R.H. TROIDL
                                  Clerk of Court




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