               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.

                        DAUTHARD S. MASON
                  CORPORAL (E-4), U.S. MARINE CORPS

                           NMCCA 201300154
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 25 January 2013.
Military Judge: Col Daniel Daugherty, USMC.
Convening Authority: Commander, Marine Corps Base,
Quantico, VA .
Staff Judge Advocate's Recommendation: Maj C.M. Hoover,
USMC.
For Appellant: LT Jennifer Myers, JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN; Maj David
Roberts, USMC.

                             30 April 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 disobeying a
lawful general order, patronizing a prostitute, adultery, and
communicating a threat, in violation of Articles 92 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934. The
military judge sentenced the appellant to 30 months’
confinement, reduction to pay-grade E-1, a dishonorable
discharge, and a reprimand. The convening authority (CA)
disapproved the reprimand, approved the remaining sentence as
adjudged and, except for the punitive discharge, ordered the
sentence executed. In accordance with the pretrial agreement,
the CA suspended all confinement in excess of 18 months for a
period of six months.

     The appellant asserts three assignments of error (AOEs).
First, the appellant claims that his plea to communicating a
threat was improvident, because the threat “was vague and
contingent” and because his statements “did not name a specific
or identifiable person”. 1 Second, the appellant claims that he
was subjected to unlawful post-sentence restraint that warrants
relief. Last, the appellant claims that the charges of adultery
and patronizing a prostitute were unreasonably multiplied for
findings. 2 After careful consideration of the record of trial
and the submissions of the parties, we are convinced that the
findings and sentence are correct in law and fact, and that no
error materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                                   Background

     Over a two-month period of time, the appellant, a married
Marine corporal, convinced a subordinate Marine, Lance Corporal
(LCpl) L, that he intended to kill a prostitute and dispose of
her body in a remote area on base. At first, LCpl L did not
believe that the appellant was serious, but a few weeks later,
after the appellant began describing in detail how he intended
to locate, kill, and dispose of the body, LCpl L decided to
report his suspicions to his chain of command and the Naval
Criminal Investigative Service (NCIS).

     The first time that the appellant talked about killing a
prostitute occurred when he and LCpl L were on duty. The
appellant asked LCpl L, “Do you want to kill a hooker?” Record
at 120. The appellant did not specify or identify any
particular prostitute when he asked the question. The appellant
told LCpl L that he wanted to kill a prostitute because nobody
would miss her and they could take her money. Id. During this
initial conversation, the appellant also suggested to LCpl L

1
    Appellant’s Brief and Assignments of Error of 8 Nov 2013 at 1.
2
  The military judge determined, however, that the two charges were an
unreasonable multiplication of charges for sentencing. Record at 233.
                                        2
that, after killing the prostitute, they could get rid of her
body in one of the remote training areas on base. At the time,
LCpl L thought the appellant’s comments were odd, but because
the appellant chuckled afterwards, he did not think these
statements amounted to anything more than a weird joke.

     Approximately two or three weeks later, the appellant
texted LCpl L and invited him to stop by his house for dinner
before LCpl L went on duty. LCpl L accepted the invitation and,
soon after he arrived, the appellant showed him a suitcase and
asked him whether he thought a body could fit in there. This
comment raised LCpl L’s suspicions that the appellant might be
serious about killing a prostitute. Again, LCpl L did not
report the appellant’s statements because he still was not
completely convinced that the appellant was serious and,
therefore, did not want to get the appellant in trouble.

     However, later that month, the appellant called LCpl L and
told him that he was “thinking about going out and doing it
tonight.” Id. at 124. The appellant then asked LCpl L if he
would open one of the gates to the training area if he showed
up. LCpl L believed that the appellant intended to kill a
prostitute that day and replied that he “wasn’t sure . . .
because if [he] would have said, Yes, [he] believe[d] that [the
appellant] would’ve gone out and killed somebody or killed a
hooker.” Id. at 124-25. After this last conversation, LCpl L
decided to inform his chain of command and NCIS because he
thought that the appellant was “about 95 percent serious.” Id.
at 125. That same day, LCpl L agreed to cooperate with NCIS and
engage in a pretextual phone call to the appellant.

     At one point, LCpl L asked the appellant specifically how
he thought they were going to proceed with the plan, to which
the appellant replied that he had hoped to have done it the day
before, but did not because he did not have a shovel. The
appellant then conveyed to LCpl L that he would try again that
Saturday afternoon or evening. The conversation continued with
the two Marines describing how they would get the prostitute
into the duffle bag after “tasing” her first. The appellant
then told LCpl L that the “stuff” they would need to carry out
the threat was already in his truck, to include: a knife, a
pistol, duct tape, ammunition, and a large waterproof duffle
bag. Specifically, the appellant said to LCpl L, “All the stuff
is in the back of the truck. Duct tape. I’ve got my 45 in the
back of the truck. I mean, the first time I think, depending on
what’s going on Saturday, I’ll just fucking shoot her and be


                               3
done with it. One time with my .45.”   (Emphasis added).
Prosecution Exhibit 2 at 7.

     The next day, LCpl L returned to the appellant’s home where
the appellant showed LCpl L a stun gun and a roll of tan duct
tape he claimed he would use in the abduction and killing. The
appellant also described how he intended to find the prostitute
he would kill by using certain sites on the Internet. Soon
thereafter, the appellant was taken into NCIS custody and
questioned.

     While being questioned by NCIS, the appellant admitted to
“hav[ing] hired approximately five different escorts in the last
nine months” 3 who he found on-line. When he found someone he was
interested in hiring, he would contact them on a second phone he
kept in his truck, and would thereafter arrange to meet
somewhere in the local area. The appellant’s most recent
solicitation occurred only days before his threats to LCpl L.

     Additional facts necessary for the resolution of the AOEs
are provided below.

                    Communicating a Threat

     In his first assignment of error, the appellant claims that
his guilty plea to communicating a threat was improvident for
two reasons. First, he asserts that there is no evidence that
the threat was made to a specific person. Second, he asserts
that the threat was equivocal, because the threat was dependent
upon “what’s going on Saturday.” PE 2 at 7.

     This court reviews a military judge’s acceptance of a
guilty plea for an abuse of discretion. United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F 2008). In doing so, we
apply the substantial basis test to determine whether “the
record as a whole show[s] ‘a substantial basis’ in law and fact
for questioning the guilty plea.” Id. (quoting United States v.
Prater, 32 M.J. 433, 436 (C.M.A. 1991)). This court will not
reverse a military judge’s acceptance of a guilty plea unless we
find a substantial conflict between the plea, the statements of
the appellant, or other evidence in the record. United States
v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996).




3
    PE 5 at 3.


                                4
     Here, the appellant conveyed to LCpl L that he intended to
kill a prostitute at random, but never identified any one in
particular. However, the law does not require that the
potential victim be named. The appellant must only have
expressed “a present determination or intent to wrongfully
injure the person . . . .” MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), Part IV, ¶ 110b(1) (emphasis added). Further,
military courts and the federal courts have long accepted that a
threat to harm a particular group or type of victim is
sufficient. 4 Thus, the lack of a specifically named victim does
not render the appellant’s guilty plea improvident. There is
ample evidence in the record to support a finding that the
context of the appellant’s threat to kill a prostitute, as
communicated to LCpl L, would make a reasonable person believe
that a prostitute at large in the local area was in danger of
being harmed.

     The appellant also contends that the threat he communicated
to LCpl L was equivocal, because the threat was conditioned on
“what’s going on Saturday.” The appellant claims that because
this statement lacked immediacy and was dependent on various
factors, it was a conditional statement that undermines the
threat declaration. 5 We find no merit in this claim. When
analyzing whether a contingency suffices to neutralize a threat,
the courts have focused primarily on whether the contingency
would make a reasonable person believe that no threat existed,
not whether it reduced the likelihood of the event occurring.
United States v. Shropshire, 43 C.M.R. 214, 215-16 (C.M.A.
1971). Also, it is well-settled that any judicial examination
of threats under Article 134, UCMJ, must “pay due regard to any
concretely expressed contingency associated with a threat, while
remaining aware that all communication takes place within a
context that can be determinative of meaning.” United States v.
Brown, 65 M.J. 227, 231 (C.A.A.F. 2007) (citing United States v.
Cotton, 40 M.J. 93, 95 (C.M.A. 1994)).

     From the record, it is clear that the appellant’s reference
to Saturday had only to do with his determination as to when,

4
  See, e.g., United States v. Gilluly, 32 C.M.R. 458, 460-61 (C.M.A. 1963)
(holding that a threat to harm “his buddies” at the Officers’ Club and the
NCO Club were sufficient to identify the potential victims of his threat).
We are also persuaded by a recent federal case wherein the 3d Circuit Court
of Appeals held that the appellant’s statements threatening a “kindergarten
class,” the “State Police” and the “Sheriff’s Department” sufficed to
communicate a threat, despite not naming a specific person or child. United
States v. Elonis, 730 F.3d 321, 334-35 (3d Cir. 2013).
5
    Appellant’s Brief at 12.
                                     5
not if, he would try to execute his plan to kill a prostitute.
The appellant’s guilty pleas, stipulation of fact, and the
recorded conversations between the appellant and LCpl L support
this conclusion. Moreover, when we consider the preparatory
steps demonstrated by the appellant, such as: obtaining a
suitcase; procuring a waterproof bag; storing a stun gun, rope
and pistol in his vehicle; and devising a means to dispose of
the body on base, we are satisfied that the threat was still
reasonably perceived to exist and was not neutralized.
Accordingly, we find no substantial basis on law or fact to
question the appellant’s guilty plea. Inabinnette, 66 M.J. at
322.

                Imposition of Post-Sentence Restraint

     In his second assignment of error, the appellant alleges
through his post-trial affidavit that the restrictions placed on
him after his release from the brig amounted to unlawful
punishment that warrants relief. We disagree.

     After completing his sentence of confinement, the appellant
was released from the brig and assigned to a base command for
approximately 18 days to allow for the processing of his
appellate leave paperwork. In a post-trial affidavit, he
alleges that he was mistreated by his command because he could
not leave base for the first week, was prohibited from drinking
alcohol, and required an escort when he went anywhere on base.
The appellant was also required to check-in three times a day
for accountability purposes. Once granted permission to leave
base in his second week, he complains that he was required to
call and check in with his unit twice daily. The appellant
further states that when he asked to call his trial defense
attorney regarding his appellate leave paperwork, the company
commander remained in the room while the call was being made and
that this affected his ability to candidly communicate with his
counsel. The appellant claims that his command warned him that
if failed to follow these orders he “would be charged and sent
back to the brig.” 6

      We are not persuaded by the appellant’s assertions that any
of the treatment complained of, if true, amounts to unlawful
punishment. First, RULE FOR COURT-MARTIAL 304(h), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.), recognizes that restraint is
permissible for administrative purposes. Administrative
6
  Appellant’s Motion to Attach of 8 Nov 2013, Post-Trial Affidavit dated 4 Nov
2013 at 1.


                                      6
restriction is authorized even after a service member has fully
served his confinement and is pending appellate review process.
Reed v. Ohman, 41 C.M.R. 110, 113 (C.M.A. 1969). Second,
assuming that all facts contained in the appellant’s affidavit
are true, we are hard-pressed to find that any of the conditions
placed on him during this 18-day period extended beyond what was
necessary to ensure his accountability before he was ordered
onto appellate leave. Since the conditions placed on the
appellant were administrative in nature and served legitimate
command objectives of accountability, we find no merit to this
assignment of error.

      Unreasonable Multiplication of Charges (UMC) for Findings

     In his final assignment of error, the appellant claims that
the Government unreasonably multiplied the charges of adultery
and patronizing a prostitute because both offenses arose out of
the same act. He further claims that the military judge’s
failure to dismiss the adultery charge stemming from this act
amounts to an abuse of discretion. 7 We disagree.

     In addition to his other pleas of guilty, the appellant
entered unconditional pleas of guilty to one specification of
adultery and one specification of patronizing a prostitute.
After the military judge accepted the appellant’s guilty pleas,
but before sentencing, the military judge granted trial defense
counsel’s motion to merge these two charges for sentencing
purposes. Record at 116, 232-33. Notably, trial defense
counsel did not assert at trial that there was UMC for findings.

     In determining whether UMC exists, this court considers
five factors: (1) Did the accused object at trial; (2) Are the
charges aimed at distinctly separate criminal acts; (3) Do the
charges misrepresent or exaggerate the acts; (4) Do the charges
unreasonably increase the appellant’s punitive exposure; and (5)
Is there any evidence of prosecutorial overreaching or abuse in
the drafting of the charges and specifications? United States
v. Quiroz, 57 M.J. 583, 585-86 (N.M.Ct.Crim.App. 2002) (en
banc), aff’d, 58 M.J. 183 (C.A.A.F. 2003) (summary disposition).

7
   “A military judge’s decision to deny relief for unreasonable multiplication
of charges is reviewed for an abuse of discretion.” United States v.
Campbell, 71 M.J. 19, 22 (C.A.A.F. 2012) (citing, United States v. Pauling,
60 M.J. 91, 95 (C.A.A.F. 2004) (additional citation omitted). We leave for
another day whether the appellant’s objection at trial “to merge Charge III,
Specification 1, and the Additional Charge I and Specification for purposes
of sentencing” (Record at 116) also preserves the issue of UMC for findings
post-Campbell.
                                      7
     The first Quiroz factor weighs against the appellant.
Here, trial defense counsel raised UMC for sentencing, but did
not object to UMC for findings, a distinct basis for relief.

     The second and third factors also weigh against the
appellant since the two charges were aimed at distinctly
different criminal acts – the adultery charge was aimed at
addressing the appellant’s unlawful extramarital sexual conduct,
while the patronizing a prostitute charge was aimed at the
unlawful exchange of money for sex with someone to whom the
appellant was not married. Thus, this charging scheme does not
misrepresent or exaggerate his criminality.

     The fourth factor weighs against the appellant in that the
military judge merged the two specifications for sentencing.

     The fifth factor also weighs against the appellant. There
is no evidence of prosecutorial overreaching or abuse in the
drafting and charging of the two offenses. In fact, within a
range of charging options, the Government chose to only charge
the appellant with one specification of adultery and one
specification of procuring a prostitute even though the evidence
supported charging the appellant with multiple occasions of both
offenses. 8

     We find that all of the Quiroz factors clearly weigh
against the appellant. Accordingly, we hold that the military
judge did not abuse his discretion by merging the specifications
for sentencing, but allowing the convictions to stand.

                                Conclusion

     The findings and the sentence as approved by the CA are
affirmed.

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




8
  The appellant admitted to at least five occasions where he had sexual
intercourse with a prostitute he patronized, while married. Record at 94-95.
                                     8
