             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                             UNITED STATES

                                                       v.

                              Technical Sergeant JEREL K. GABRIEL
                                      United States Air Force

                                                 ACM 38459

                                              22 January 2015

           Sentence adjudged 14 June 2013 by GCM convened at Joint Base Lewis-
           McChord, Washington. Military Judge: William C. Muldoon, Jr.

           Approved Sentence: Dishonorable discharge, confinement for 36 months,
           forfeiture of all pay and allowances, and reduction to E-1.

           Appellate Counsel for the Appellant: Captain Jeffrey A. Davis.

           Appellate Counsel for the United States:               Major Roberto Ramirez and
           Gerald R. Bruce, Esquire.

                                                    Before

                              MITCHELL, WEBER, and CONTOVEROS
                                    Appellate Military Judges

                                       OPINION OF THE COURT

            This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                                    under Rule of Practice and Procedure 18.4.



WEBER, Judge:

       A panel of officer members at a general court-martial convicted the appellant,
contrary to his pleas, of three specifications of sexual assault in violation of Article 120,
UCMJ, 10 U.S.C. § 920.* The members sentenced the appellant to a dishonorable



*
  The charged events took place on 6 August 2012, meaning the appellant was charged and convicted under the
current version of Article 120, UCMJ, 10 U.S.C. § 920, which applies to offenses committed on or after 28 June
2012. See Manual for Courts-Martial, United States, Part IV, ¶ 45 (2012 ed.).
discharge, confinement for 36 months, forfeiture of all pay and allowances, and reduction
to E-1. The convening authority approved the sentence as adjudged.

       On appeal, the appellant alleges the military judge abused his discretion by
excluding evidence of a prior false allegation made by the named victim in this case. In
addition, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the
appellant alleges his convictions are factually insufficient, his sentence is inappropriately
severe, and unlawful command influence impacted his court-martial. We find no error
materially prejudicial to a substantial right of the appellant and affirm.

                                        Background

       The charged acts all took place on the morning of 6 August 2012. The appellant
and BG both attended a party at a friend’s house the previous night where they consumed
alcohol. BG and the appellant demonstrated an interest in each other during the party.
BG willingly went for a walk with the appellant and kissed him, at which time she “got
the spins” from alcohol consumption and vomited. The appellant escorted her back to the
house, where BG fell asleep on a couch. There is no allegation that any sexual activity
occurred at that time.

        The appellant knew BG needed to be at work by 0900 hours. He woke her up at
around 0700 hours. The appellant and BG engaged in consensual kissing. The appellant
placed his hand under BG’s shirt and touched her breasts. BG stated she did not want
this contact but allowed it to occur up to a point. However, when the appellant escalated
the sexual activity further by pulling down her pants and underwear, she said “no”
repeatedly and tried to grab her pants to keep them up. The appellant continued to
partially remove her pants and underwear and sexually assaulted her in various ways as
she told him to stop and physically attempted to stop the contact and extricate herself
from the situation. The appellant made derogatory remarks toward her as he sexually
assaulted her. Eventually, BG was able to leave the house.

       BG promptly reported the incident to law enforcement and underwent a sexual
assault examination. Law enforcement officials interviewed the appellant after advising
him of his rights. The appellant denied sexually assaulting BG but did make some
incriminating statements that were introduced at trial.

                            Exclusion of BG’s Prior Statements

       More than two years before the charged acts, BG was married to another man.
Due to some issues in the marriage, the couple explored with a counselor possible
reasons for BG’s husband’s lack of interest in physical intimacy. Soon afterward, the
couple was undergoing a divorce when BG observed their young son in bed without
anything on from the waist down. BG’s husband’s hand was under the blanket. BG


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asked her husband what was happening, and her husband became defensive and accused
her of having her mind “in the gutter.” This, combined with some behavior BG had
observed when her husband was around BG’s daughter, caused BG to contact a police
officer. BG testified in motions practice that she contacted the police officer to obtain a
professional’s perspective about whether her husband’s behavior seemed suspicious, not
to file a complaint. She also testified that she was seeking an explanation for her
husband’s lack of desire in physical intimacy. After speaking with the police officer, she
declined to pursue the matter further, and the couple was able to resolve child custody
issues on their own.

       The Government moved in limine to exclude evidence of BG’s statements to the
police department about her husband’s behavior. The Government asserted this evidence
had no tendency to affect BG’s credibility in the instant case, citing the differences
between the two instances. The defense did not file a written opposition but orally
argued that pursuant to United States v. Bahr, 33 M.J. 228 (C.M.A. 1991), BG’s
communication to a police officer constituted a false report that related to BG’s
credibility. Trial defense counsel also asserted this evidence was relevant to the
defense’s theme that BG tended to exaggerate and overreact to situations.

      A military judge’s decision to grant a motion to suppress evidence is reviewed for
an abuse of discretion. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008).

              “Abuse of discretion” is a term of art applied to appellate
              review of the discretionary judgments of a trial court. An
              abuse of discretion occurs when the trial court’s findings of
              fact are clearly erroneous or if the court’s decision is
              influenced by an erroneous view of the law. See United
              States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007). “Further,
              the abuse of discretion standard of review recognizes that a
              judge has a range of choices and will not be reversed so long
              as the decision remains within that range.” United States v.
              Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citing United States
              v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992)).

Freeman, 65 M.J. at 453.

       After receiving evidence and hearing argument on this issue, the military judge
issued the following findings of fact:

              That allegation was made more than two years prior to the . . .
              allegations in this court-martial. Those allegations have no
              tie to this accused; the alleged victim in this case did make a
              report to local law enforcement of conduct by her then-


                                             3                                  ACM 38459
              husband; she was undergoing divorce proceedings at that
              time; she did not pursue any charges against her now ex-
              husband because of those allegations.

The record reveals some dispute over whether BG’s statements to law enforcement about
her now ex-husband constituted a “report.” Nonetheless, given the ambiguity on this
point, the military judge’s finding of fact that BG did make a report to local law
enforcement is not clearly erroneous. Similarly, none of the military judge’s other
findings of fact are clearly erroneous.

       Specific instances of a witness’s conduct generally may not be proved by extrinsic
evidence. Mil. R. Evid. 608(b). However, in the discretion of the military judge, they
may be inquired into on cross-examination of the witness if probative of truthfulness or
untruthfulness. Id. In addition, Mil. R. Evid. 608(c) allows for witness examination or
extrinsic evidence to show bias, prejudice, or any motive to misrepresent.

       The right to cross-examination is broad, and the rules of evidence should be read
to allow liberal admission of bias-type evidence. United States v. Moss, 63 M.J. 233, 236
(C.A.A.F. 2006) (citing United States v. Williams, 40 M.J. 216, 218 (C.M.A. 1994)). In
general, “the exposure of a witness’ motivation in testifying is a proper and important
function of the constitutionally protected right of cross-examination.” Davis v. Alaska,
415 U.S. 308, 316–17 (1974) (citing Greene v. McElroy, 360 U.S. 474, 496 (1959)).
However, cross-examination must comply with applicable rules of evidence, and a trial
judge may set reasonable limits on cross-examination that intends to attack a witness’s
credibility based on concerns such as harassment, prejudice, confusion of issues, witness
safety, repetitiveness, or marginal relevancy. United States v. Velez, 48 M.J. 220, 226
(C.A.A.F. 1998) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986));
United States v. Gonzalez, 16 M.J. 423, 425 (C.M.A. 1983). While evidence of a prior
false allegation of sexual assault might impact a witness’s credibility, “[t]he mere filing
of a complaint is not even probative of the truthfulness or untruthfulness of the complaint
filed.” Velez, 48 M.J. at 227 (citing United States v. Morrison, 98 F.3d 619, 628 (D.C.
Cir. 1996)).

       In United States v. Bahr, 33 M.J. 228, 234 (C.M.A. 1991), our superior court
found error when the military judge barred cross-examination of the victim regarding a
“prior false rape claim” when the defense theory of admissibility was that the false claim
showed the victim had a motive to testify falsely to call attention to herself. In Bahr, the
named victim admitted she had made prior false statements to her classmates that she had
been raped and suffered from various terminal diseases. Id. at 231. The court held that
the defense sought to question the named victim about these prior allegations “for the
purpose of showing that [she] had a second motive for testifying falsely in this case
against appellant, i.e., to call attention to herself.” Id. at 233. The court held the



                                             4                                ACM 38459
defense’s proffer of this information “rationally supported the defense’s theory of
impeachment” and did not violate the reasonableness standard of Van Arsdall. Id. at 234.

        We see the instant case as easily distinguishable from Bahr and find no abuse of
discretion in the military judge’s decision to exclude this line of questioning. First, there
is little to no evidence that BG’s statements to police about her now ex-husband
constituted a “false” report. She reported to police what she saw and asked police if she
should be concerned. She then elected not to pursue the matter further, but there is no
evidence that she admitted her earlier statements were false or that her statements were in
fact false. Rather, it appears that she merely realized her perception of what was
happening was influenced by the emotion of the moment and her impending divorce;
upon further reflection she chose to believe her husband did not commit the actions of
which she initially suspected him. This is not the same as the admitted prior false
statements at issue in Bahr. Therefore, while at least part of the defense theory in this
case was the same as that in Bahr (that the named victim had a motive to call attention to
herself), the prior statements by BG to police have little to no tendency to show that she
possessed this motive or a tendency to do so.

        In addition, the military judge correctly noted that the prior statements bore little
resemblance to the instant case. The prior statements concerned a different person’s
possible actions toward a child, while the instant case involved the appellant’s actions
toward her. BG made the prior statements in the throes of an emotional time due to her
impending divorce and the uncertainty about her husband’s reason for his lack of interest
in physical intimacy; in the instant case, BG apparently was under no such stress until the
appellant committed the charged acts. In the prior situation, BG never sought legal action
against her now ex-husband and quickly dropped the matter. In the instant case, BG
immediately reported the matter as a crime, underwent a sexual assault examination, and
saw the matter through. The military judge was well within his discretion to exclude
cross-examination on this topic due to the marginal to non-existent relevancy of BG’s
prior statements about an entirely different matter. We also note that the military judge
did state he would permit the defense to raise this matter in cross-examination if the
Government introduced evidence as to BG’s character for truthfulness. Finally, even
assuming the military judge should have permitted the defense to cross-examine BG
about this matter, we are fully confident this would have had no impact on the fact-finder
for the reasons outlined above.

                                    Factual Sufficiency

        The appellant contends that his sexual assault convictions are factually
insufficient. He cites BG’s alleged lack of credibility and the defense witnesses who
testified as to his character for truthfulness and corroborated some aspects of his account
on the night before the charged acts.



                                             5                                 ACM 38459
       Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we review issues of factual
sufficiency de novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). The test for
factual sufficiency is “whether, after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses, [we] are [ourselves]
convinced of the accused’s guilt beyond a reasonable doubt.” United States v. Turner,
25 M.J. 324, 325 (C.M.A. 1987). Review of the evidence is limited to the entire record,
which includes only the evidence admitted at trial and exposed to the crucible of cross-
examination. Article 66(c), UCMJ; United States v. Bethea, 46 C.M.R. 223, 224–25
(C.M.A. 1973).

       Having reviewed the entire record, we conclude the findings are factually
sufficient. BG’s testimony was sufficiently detailed and consistent to support the
members’ findings. She promptly reported the incident, and her account remained
consistent throughout the investigative and court-martial processes. In addition, a
medical examination at least partially supported her account. The defense attempted to
demonstrate that BG had a tendency to exaggerate matters, but this attempt fell short.
The defense was able to successfully rebut some statements BG made about events the
night before the charged acts. However, as was the case at trial, this does not cause us to
disbelieve BG’s consistent and credible account of what occurred on the morning in
question. We agree with the members that the appellant is guilty of the charged offenses.

                                Sentence Appropriateness

       The appellant also asserts his sentence is inappropriately severe when compared to
other court-martial sentences he cites.

       We “may affirm only such findings of guilty and the sentence or such part or
amount of the sentence, as [we find] correct in law and fact and determine[], on the basis
of the entire record, should be approved.” Article 66(c), UCMJ. “We assess sentence
appropriateness by considering the particular appellant, the nature and seriousness of the
offenses, the appellant’s record of service, and all matters contained in the record of
trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009).
Although we are accorded great discretion in determining whether a particular sentence is
appropriate, we are not authorized to engage in exercises of clemency. United States v.
Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

       In exercising sentence appropriateness review, “[t]he Courts of Criminal Appeals
are required to engage in sentence comparison only ‘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. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001) (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). An
appellant bears the burden of demonstrating that any cited cases are “closely related” to
the appellant’s case and the sentences are “highly disparate.” United States v. Lacy,


                                             6                               ACM 38459
50 M.J. 286, 288 (C.A.A.F. 1999). Closely related cases include those which pertain to
“coactors 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.” Id. If the appellant meets his or her burden to
demonstrate closely related cases involve highly disparate sentences, the Government
“must show that there is a rational basis for the disparity.” Id.

       Applying these standards to the present case, we do not find the appellant’s
sentence inappropriately severe. We have given individualized consideration to this
particular appellant, the nature and seriousness of the offenses, the appellant’s record of
service, and all other matters contained in the record of trial. The appellant repeatedly
sexually assaulted a woman who had just awoken. She may have consented to a certain
level of physical activity with the appellant, but as the activity progressed, she made it
clear she did not want it to escalate further. The appellant ignored her verbal and
physical attempts at resistance for his own gratification. Despite the appellant’s lengthy
positive service record, his sentence remains appropriate. The sexual assault cases the
appellant cites are not closely related to his own, as they involve no direct nexus between
the servicemembers. Nonetheless, we have considered these cases as part of our overall
sense as to considerations of uniformity and even-handedness in sentencing. See Sothen,
54 M.J. at 296; United States v. Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001). The
appellant’s sentence remains appropriate.

                               Unlawful Command Influence

        The defense moved to dismiss the charges based on unlawful command influence,
along with defective preferral and referral of charges. The appellant does not re-raise the
defective preferral/referral issue on appeal, concentrating instead on the unlawful
command influence issue. His motion at trial did not focus on any wrongdoing in this
case; rather, it broadly asserted a “toxic” atmosphere exists with regard to sexual assault
allegations in the military, and this atmosphere “pervades the entire process, from the
initiation of an investigation to appellate review and all of the steps in between.” His
assignment of error on this issue is substantively identical to his motion at trial.

       “Where the issue of unlawful command influence is litigated on the record, the
military judge’s findings of fact are reviewed under a clearly-erroneous standard, but the
question of command influence flowing from those facts is a question of law that this
Court reviews de novo.” United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994).

       Article 37(a), UCMJ, 10 U.S.C. § 837(a), states in relevant part: “No person
subject to this chapter may attempt to coerce or . . . influence the action of a court-martial
or any other military tribunal or any member thereof, in reaching the findings or sentence
in any case . . . .” “The term ‘unlawful command influence’ has been used broadly . . . to
cover a multitude of situations in which superiors have unlawfully controlled the actions


                                              7                                 ACM 38459
of subordinates in the exercise of their duties under the UCMJ.” United States v.
Hamilton, 41 M.J. 32, 36 (C.M.A. 1994) (citing United States v. Hawthorne, 22 C.M.R.
83 (C.M.A. 1956)). Generally, unlawful command influence consists of two types:
accusatory (preferral, forwarding, and referral of charges) and adjudicative (interference
with witnesses, judges, members, and counsel). United States v. Weasler, 43 M.J. 15,
17–18 (C.A.A.F. 1995).

        At trial, the burden of raising the issue of unlawful command influence rests with
trial defense counsel. United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). The
defense must: (1) “show facts which, if true, constitute unlawful command influence,”
and (2) show “the alleged unlawful command influence has a logical connection to the
court-martial, in terms of its potential to cause unfairness in the proceedings.” Id. To
meet the threshold for raising this issue, trial defense is required to present “some
evidence” of unlawful command influence. Id. If the defense meets that burden to raise
the issue, the burden shifts to the Government, who must: “(1) disprove the predicate
facts on which the allegation of unlawful command influence is based; (2) persuade the
military judge that the facts do not constitute unlawful command influence; or (3) prove
at trial that the unlawful command influence will not affect the proceedings.”
United States v. Simpson, 58 M.J. 368, 373 (C.A.A.F. 2003) (quoting Biagase,
50 M.J. at 151) (internal quotation marks omitted). “Whichever tactic the Government
chooses, the quantum of proof is beyond a reasonable doubt.” Id. (quoting
United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002)) (internal quotation marks
omitted).

        The military judge heard evidence and argument on the defense’s broad unlawful
command influence motion. He issued extensive findings of fact and thoroughly
analyzed this issue, denying the defense’s motion. We can add nothing substantive to his
analysis of this issue, but to briefly summarize, he found: the defense largely failed to
introduce evidence to support its contentions, comments from Congress and senior
leaders about sexual assault in the military contained broad generalities about this issue
and no comments were specifically made about this case, and the convening authority’s
affidavit stated he took his role very seriously and any comments by senior government
officials had no impact on him. The military judge analyzed the defense motion for both
apparent and actual unlawful command influence, and covered each relevant stage of the
court-martial process. He allowed wide latitude in questioning potential members about
their knowledge about any comments by senior government officials concerning sexual
assault in the military, and indicated he would liberally grant challenges for cause on this
issue. However, the defense did not challenge a single member based on this issue. We
find no abuse of discretion in the military judge’s thorough, well-reasoned ruling.
Because the appellant has simply re-raised his trial motion without alleging anything new
on appeal, we see no reason to suspect unlawful command influence impacted the
appellant’s court-martial.



                                             8                                ACM 38459
                                      Conclusion

       The approved findings and the sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant regarding the affirmed
charges and specifications occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§
859(a), 866(c). Accordingly, the findings and the sentence are AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           9                               ACM 38459
