              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 38979
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                         Christopher J. HILL
                 Captain (O-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 12 July 2017
                          ________________________

Military Judge: Shelly W. Schools.
Approved sentence: Dismissal, confinement for 45 days, and forfeiture
of all pay and allowances. Sentence adjudged 16 November 2015 by
GCM convened at Laughlin Air Force Base, Texas.
For Appellant: Major Johnathan D. Legg, USAF.
For Appellee: Major J. Ronald Steelman III, USAF; Gerald R. Bruce,
Esquire.
Before MAYBERRY, HARDING, and C. BROWN, Appellate Military
Judges.
Judge HARDING delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge C. BROWN joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

HARDING, Judge:
    In accordance with his pleas, a general court-martial consisting of a mili-
tary judge sitting alone found Appellant guilty of one specification of failure
to obey a lawful no-contact order, one specification of making a false official
                        United States v. Hill, No. ACM 38979


statement, two specifications of conduct unbecoming an officer and gentle-
man, one specification of adultery, three specifications of fraternization, and
one specification of obstruction of justice, in violation of Articles 92, 107, 133,
and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 907,
933, 934. The military judge sentenced Appellant to a dismissal, confinement
for three months, and forfeiture of all pay and allowances. Pursuant to a pre-
trial agreement (PTA), the convening authority approved only so much of the
sentence as provided for a dismissal, 45 days of confinement, and forfeiture of
all pay and allowances.
   Appellant raises three assignments of error: (1) unlawful command influ-
ence affected Appellant’s sentencing hearing; 1 (2) admission of squadron
commander’s opinion on Appellant’s rehabilitative potential was plain error;
and (3) trial counsel’s reference to Air Force Core Values in his sentencing
argument was plain error. We find no prejudicial error and affirm.

                                   I. BACKGROUND
    In October of 2013, Appellant met Second Lieutenant (2d Lt) RS at a par-
ty hosted by student-pilots at Laughlin Air Force Base, Texas. At the time,
Appellant was assigned as an instructor pilot and had also been appointed a
flight commander. Appellant was married to AH. 2d Lt RS was assigned as a
student pilot and was also married. After mutual flirtation between the two
at the party, 2d Lt RS invited Appellant to her home where they engaged in
sexual intercourse. While not in effect when Appellant and 2d Lt RS first met
and had sex, Air Education and Training Command Instruction (AETCI) 36-
2909, Recruiting, Education and Training Standards of Conduct, became ef-
fective on 2 December 2013. The newly-published instruction contained a
provision that expressly prohibited personal relationships between instruc-
tors and students. Notwithstanding the prohibition in the AETCI, Appellant
and 2d Lt RS continued to spend time together throughout the fall, winter,
and following spring to include a sexual liaison in the squadron flight com-
mander’s office. Appellant’s relationship with 2d Lt RS did not go unnoticed
and eventually came to the attention of his leadership.
   A commander-directed investigation commenced in May 2014 to deter-
mine whether Appellant and 2d Lt RS had engaged in misconduct, to include
an unprofessional relationship, adultery, and conduct unbecoming an officer
and gentleman. On 22 May 2014, the investigating officer interviewed Appel-
lant about his relationship with 2d Lt RS. Appellant lied and maintained that

1   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).




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                    United States v. Hill, No. ACM 38979


his relationship with 2d Lt RS was strictly professional. Immediately follow-
ing the interview, Appellant was ordered by his squadron commander, Lieu-
tenant Colonel (Lt Col) ML, both orally and in writing, to have no contact
with 2d Lt RS. Appellant, however, continued to communicate with 2d Lt RS
and spend time with her. Among other clandestine methods, Appellant di-
rectly communicated with 2d Lt RS through the use of “burner” phones and
he met her at various remote locations in and around Laughlin Air Force
Base to avoid detection. Additionally, Appellant and 2d Lt RS took numerous
trips together outside of Del Rio, Texas. As the investigation continued, Air
Force Office of Special Investigations (AFOSI) became involved. AFOSI re-
covered Appellant’s burner phone and retrieved 61 messages from Appellant
to 2d Lt RS.
    AFOSI also executed a search of an airplane hangar at the Del Rio Inter-
national Airport where Appellant had stored his homebuilt personal kitplane.
AFOSI discovered various media storage devices belonging to Appellant
wrapped in plastic bags and buried under a patch of disturbed dirt. Appellant
had convinced 2d Lt RS to permit him to photograph and video-record her in
various sexual poses, as well as their sexual activity, on the condition that no
one other than Appellant would ever view the explicit digital material. Appel-
lant buried devices containing recorded material in order to impede the ongo-
ing investigation into his relationship with 2d Lt RS, to prevent others from
ever seeing the explicit images of her, and to ensure that the files stored on
the devices were not damaged. Upon examination of these devices, AFOSI
identified several sexually explicit photographs and videos of Appellant and
2d Lt RS, as well as stored digital photographs of several other women. Three
of the women were later identified as enlisted Airmen that Appellant had de-
ployed with to Guam or been assigned with at Minot Air Force Base, North
Dakota. Further investigation established that Appellant had engaged in flir-
tatious communications with all three women through social media, and he
had engaged in sexual intercourse with one of them while deployed to Guam.
   As described above, Appellant was charged with nine specifications and
entered into a PTA whereby he agreed to, among other terms, plead guilty as
charged and waive “all motions which may be waived under the Rules for
Courts-Martial.” In return, the convening authority agreed to approve no
more than 45 days of confinement.
    Upon inquiry by the military judge regarding the scope of the “waive all
waivable motions” term of the PTA, Appellant’s civilian trial defense counsel
stated that one motion considered by the Defense but “given up [was] with
respect to unlawful command influence.” Counsel further told the military
judge “we have some information we’ll provide you as part of an unsworn
statement about an aura of intimidation at Laughlin Air Force Base with re-
spect to members stepping forward and providing presentencing materials for

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                     United States v. Hill, No. ACM 38979


an individual going through a court-martial and how that might negatively
impact their career.” The military judge then continued and completed the
PTA inquiry, accepted Appellant’s guilty plea, entered findings of guilty to all
charges and specifications, and then recessed the court.
    Once the court was called back to order, the military judge revisited the
waiver of motions provision in the PTA and stated on the record “that certain
types of unlawful command influence cannot be waived particularly UCI re-
lated to the adjudicative process which includes access to witnesses and that
sort of seemed to be the thing Mr. [D] was alluding to when he was talking
about this motion.” The military judge further told the parties, “I want to
make it clear on the record the defense is going to be allowed to present that
evidence [of unlawful command influence] in whatever form they deem ap-
propriate. I know you have already planned to put that evidence before the
court. I just want to make it clear that the court is not putting any limita-
tions and the government is not putting any limitations on the defense to put
that information before the court.” Notwithstanding the military judge’s clar-
ifying interpretation of the scope of the “waive all waivable motions” term,
Appellant did not make a motion for relief at trial or otherwise seek a remedy
from the military judge due to the alleged “aura of intimidation.” Instead, as
counsel had previously indicated, information was provided as part of Appel-
lant’s unsworn statement 2 and argued by his counsel in sentencing.

                                II. DISCUSSION
A. Unlawful Command Influence
    Relying solely upon his unsworn statement made at trial, Appellant now
avers on appeal that unlawful command influence prejudiced his ability to
receive a fair sentencing hearing and that his sentence to a dismissal should
be set aside. We disagree.
    1. Waiver and Unlawful Command Influence
    The Government asserts that Appellant waived the issue of unlawful
command influence at trial and “therefore extinguished this court’s ability to
consider the issue and grant relief.” As the Government correctly points out
in their brief, “Appellant had the opportunity to raise this issue in a proper
motion; however, he made the strategic decision to forego the motion and


2 The matters attached to the unsworn statement that Appellant relies upon for his
claim of unlawful command influence were provided to the Government and military
judge for the first time during the presentencing session.




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                     United States v. Hill, No. ACM 38979


plead guilty, while opting to present information in an unsworn statement.”
To be sure, we certainly express a preference that all allegations of unlawful
command influence be addressed at the earliest opportunity and litigated at
the trial stage to not only build an adequate record for appellate review, but
more importantly, to permit the Government to proactively counteract and
the military judge to appropriately tailor remedies to any prejudicial impact
of unlawful command influence. Even so, we are mindful that claims of un-
lawful command influence that interfere with the adjudicative process may
not be waived.
     When describing “situations in which superiors have unlawfully con-
trolled the actions of subordinates in the exercise of their duties,” the United
States Court of Appeals for the Armed Forces (CAAF) “has sought to draw a
distinction between the accusatorial process and the adjudicative stage, that
is, the difference between preferral, forwarding, referral, and the adjudicative
process, including interference with witnesses, judges, members, and coun-
sel.” United States v. Weasler, 43 M.J. 15, 17–18 (C.A.A.F. 1995). In Weasler,
the court distinguished its prior precedent where it “never allowed doctrines
of waiver to prevent consideration of claims of improper command control” 3
and found that an accused “should be permitted to initiate an affirmative and
knowing waiver of an allegation of unlawful command influence in the pre-
ferral of charges in order to secure the benefits of a favorable pretrial agree-
ment.” Id. at 19. Weasler provides one example where unlawful command in-
fluence in the accusatorial process could be waived. The CAAF has not, how-
ever, applied waiver to allegations of unlawful command influence in the ad-
judicative process whether affirmatively initiated by an accused to secure the
benefits of a favorable PTA or not. Appellant’s counsel described the unlawful
command influence claim as an “aura of intimidation” that effectively chilled
prospective witnesses from providing character letters or testifying on Appel-
lant’s behalf during sentencing. As the military judge noted at trial, when
reviewing the PTA, “certain types of unlawful command influence cannot be
waived particularly UCI related to the adjudicative process which includes
access to witnesses.” As that is what is described here, we decline to find and
apply waiver to Appellant’s claim.




3 See United States v. Blaylock, 15 M.J. 190 (C.M.A. 1983) (citing United States v.
Hawthorne, 22 C.M.R. 83, 89 (C.M.A. 1956)); United States v. Ferguson, 17 C.M.R. 68
(C.M.A. 1954).




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                      United States v. Hill, No. ACM 38979


    2. Appellant’s Burden to Produce Some Evidence
    Although Appellant is not prevented by waiver from raising his claim of
unlawful command influence for the first time on appeal, he must present
“something more than an appearance of evil to justify action by an appellate
court in a particular case. Proof of command influence in the air, so to speak,
will not do.” United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991). Appellant
has the initial burden of producing sufficient evidence to raise unlawful
command influence. United States v. Ayala, 43 M.J. 296, 299 (C.A.A.F. 1995);
see Green v. Widdecke, 42 C.M.R. 178, 181 (C.M.A. 1970) (“Generalized, un-
supported claims of ‘command control’ will not suffice to create a justiciable
issue.”). “The threshold triggering further inquiry should be low, but it must
be more than a bare allegation or mere speculation.” Ayala, 43 M.J. at 299.
“The quantum of evidence necessary to raise unlawful command influence is
the same as that required to submit a factual issue to the trier of fact.” Id. at
300.
    As noted above, Appellant relies solely upon the matters attached to his
unsworn statement at trial. Specifically, he included printed copies of email
correspondence with ostensibly two fellow pilots whom he solicited to write
character statements for him. The names of the solicited persons are redact-
ed. Both declined to provide a character reference for Appellant but did pro-
vide their reasons as follows:
       Email 1
       I thought about this for a really long time and as much as I
       don’t want you to be completely rocked over this, I feel that for
       my family’s sake it’s more risk than I’m willing to take. By
       that, I mean that being a fellow BUFF driver means that we’re
       going to have similar circles and acquaintances that wouldn’t
       exist if I was a different MWS. 4 It wouldn’t matter if these
       memos didn’t become public record but any leadership I come
       in contact with will have access to it. I really hope you’re able
       to get out, move on and follow your aviation dreams.


       Email 2



4 “BUFF” is a nickname for the B-52 Stratofortress, a long-range, heavy bomber.
“BUFF driver” likely referred to a B-52 pilot. “MWS” likely referred to either major or
military weapons system.




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                      United States v. Hill, No. ACM 38979


       Hey Jockey, I got your voicemail this morning. I’ve been out of
       town a lot for work and I haven’t been keeping up with my
       emails. I really, really hate it but the way the Air Force is now-
       adays I don’t think I should write a letter. The last thing I
       want is for someone to come after me, which they very well
       could do. If this were in a vacuum, I absolutely would do it and
       I really want to help, but it doesn’t work that way. I really wish
       you the best of luck and I hope it works out for you. Once all of
       this done and past you, let me know and maybe we can get to-
       gether.
       It has nothing to do with you, and everything to do with the
       memo the CSAF sent out. It basically says that we are ac-
       countable for any written communication in any context. What
       I don’t want is for the JAG to get a letter from me, then start
       calling me and my leadership and highlighting me. I don’t have
       anything to hide, but in today’s Air Force I have to be careful.
       It’s nothing personal and I hope this explains things more.
    Considered at face value 5, the emails do not identify any action taken or
statement made by a member of Appellant’s chain of command who had any
nexus to Appellant’s case or impact on the potential character witnesses.
Even more generally, the emails do not support finding a climate at Laughlin
Air Force Base or in the Air Force wherein leaders would admonish or cen-
sure military members who provided character references for those facing
disciplinary actions. While the emails do demonstrate a general reluctance to
provide statements, evidence of unlawful command influence is lacking.




5 The Government also argues that as the email correspondence was offered and ac-
cepted as part of Appellant’s unsworn statement during sentencing, it is not evi-
dence. Unsworn statements are an authorized means to place information before a
sentencing authority for consideration on sentence, they are not evidence. United
States v. Provost, 32 M.J. 98, 99 (C.M.A. 1991); United States v. Satterley, 52 M.J.
782, 785 (A.F. Ct. Crim. App. 1999); United States v. Britt, 44 M.J. 731, 733 (A.F. Ct.
Crim. App. 1996). The Government thus urges this court to conclude that an unsworn
statement is not a sufficient means to meet Appellant’s burden of production of some
“evidence” to raise an issue of unlawful command influence on appeal. As we have
found the quantum presented in the unsworn statement lacking, we not decide this
issue.




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                    United States v. Hill, No. ACM 38979


B. Rehabilitative Potential Testimony
    Lt Col ML, Appellant’s squadron commander when the unprofessional re-
lationship investigation began, testified for the Government about the ad-
verse mission impact resulting from Appellant’s misconduct. He also offered
his opinion that Appellant’s rehabilitative potential was “poor to fair.” Alt-
hough not objected to at trial, Appellant avers on appeal that admission of
the opinion on rehabilitative potential was prejudicial error as the witness
testified that his opinion was principally based on the severity of the offenses.
    A military judge’s decision to admit or exclude evidence is reviewed for an
abuse of discretion. United States v. Eslinger, 70 M.J. 193, 197 (C.A.A.F.
2011). As there was no objection at trial, the admission of the testimony is
reviewed for plain error. Id. at 197–98. Under a plain error analysis, Appel-
lant must persuade this court that: (1) there is an error; (2) that the error is
clear or obvious; and (3) that the error materially affected substantial rights.
United States v. Powell, 49 M.J. 460, 463 (C.A.A.F. 1998).
    Evidence in the form of opinion testimony of an accused’s rehabilitative
potential, or lack thereof, is permissible in sentencing. Rule for Courts-
Martial (R.C.M.) 1001(b)(5)(A). The witness offering the opinion “must pos-
sess sufficient information and knowledge about the accused to offer a ra-
tionally-based opinion that is helpful to the sentencing authority.” While
knowledge of the nature and severity of the offense or offenses are properly a
part of the foundation for an opinion as to rehabilitation potential, the wit-
ness’s opinion “regarding the severity or nature of the offense or offenses may
not serve as the principal basis for an opinion of the accused’s rehabilitative
potential.” R.C.M. 1001(b)(5)(B–C). Further, once a sufficient foundation is
laid, an opinion “is limited to whether the accused has rehabilitative poten-
tial and to the magnitude and quality of any such potential.” R.C.M.
1001(b)(5)(D). The witness generally may not further elaborate or describe
the particular reasons for the opinion. However, depending on the nature and
scope of cross-examination, the witness may be permitted to testify regarding
specific instances of conduct. R.C.M. 1001(b)(5)(E–F).
    After establishing that he had been Appellant’s commander, knew Appel-
lant for about a year, and professionally interacted with him on a recurring
basis, Lt Col ML testified that Appellant’s rehabilitative potential was “poor
to fair.” Following cross-examination, including that Lt Col ML understood
that the term “rehabilitation” referred to in society as a whole and was not
limited to the Air Force, the following colloquy occurred during redirect:
       Q. Colonel [L] can you tell the court a little bit about the basis
       for your opinion as to why your opinion was “poor to fair?”




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                    United States v. Hill, No. ACM 38979


       A. Yes sir. My time knowing [Appellant] there are two things
       that he vowed for lack of better words or vowed that he would
       support was my assumption via the law was his marriage to
       his wife and the other was to support and defend the Constitu-
       tion and the trust we have. My experience with [Appellant] is
       he violated both of those which is why I am saying “poor to fair”
       and then even when he was – it was brought to my attention
       and guidance was given to him for example, a no contact order,
       he still did it and not only did he do it, but he did it in a man-
       ner that was deceitful to not only his spouse but to the organi-
       zation, the 434th and the Team XL, the 47th Flying Training
       Wing. So that’s why I got my reservations.
       Q. Sir, [is] there anything about coming in before this miscon-
       duct came to light and what you noticed about him?
        A. Like I said I did see some potential in [Appellant] or I
       wouldn’t have put him in the position he was but some poten-
       tial – some decisions commanders make aren’t perfect and this
       was one of them and so I erred a little bit but what I saw was
       somebody who was nervous, unsure of himself and was strug-
       gling to find – he wasn’t comfortable in his own skin to use
       some slang terms that’s in society today. I think that’s the ba-
       sis from what I saw of him and I think it was compounded
       based on the accusations that were put in front of him.
    Based on this testimony, Lt Col ML’s opinion regarding the severity or
nature of Appellant’s offenses plainly served as the principal basis for his
opinion of Appellant’s rehabilitative potential. Yet even assuming plain or
obvious error, Appellant has failed to demonstrate prejudice. This testimony
was but a small piece of the whole sentencing case and “[a]s the case was
tried by military judge alone and the basis of the commander’s opinion was
well set forth, we are confident that the judge placed the testimony in proper
perspective.” United States v. Horner, 22 M.J. 294, 296 (C.M.A. 1986).
C. Improper Sentencing Argument
   Finally, Appellant asserts that trial counsel impermissibly injected com-
mand policy by referencing Air Force Core Values in his sentencing argu-
ment. The legal test for improper argument is whether the argument was er-
roneous and whether it materially prejudiced the substantial rights of the
accused. “Where improper argument occurs during the sentencing portion of
the trial, we determine whether or not we can be confident that the appellant
was sentenced on the basis of the evidence alone.” United States v. Frey, 73
M.J. 245, 248 (C.A.A.F. 2014) (citing United States v. Halpin, 71 M.J. 477,


                                       9
                    United States v. Hill, No. ACM 38979


480 (C.A.A.F. 2013)); see United States v. Marsh, 70 M.J. 101, 106 (C.A.A.F.
2011); United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000); see also United
States v. Hornback, 73 M.J. 155 (C.A.A.F. 2014). Because trial defense coun-
sel did not object to any of the statements, we review under a plain error
standard. To find plain error we must find that: (1) there is an error; (2) that
the error is clear or obvious; and (3) that the error materially affected sub-
stantial rights. Powell, 49 M.J. at 463. We have examined the references
made to Air Force Core Values by trial counsel in the sentencing argument
and find no error, plain or otherwise.
    In pertinent part, trial counsel made the following sentencing argument
to the military judge:
       Captain Hill intentionally defied the rules, the regulations and
       the laws of the United States Military. He’s an officer; he chose
       to become an officer. Captain Hill chose to raise his hand and
       show up to the United States Air Force. When he did that
       there’s an expectation that he follow those core values and I
       think of it as this box of core values; the integrity, service and
       the excellence. He stepped into that box and he cannot step out-
       side of that box without punishment.
    To support his claim that the reference to Air Force Core Values was er-
ror, Appellant primarily relies on the holding in United States v. Pope, 63
M.J. 68 (C.A.A.F. 2006). Pope is easily distinguished from the facts of Appel-
lant’s case. In Pope, a recruiter was convicted by members of a variety of of-
fenses relating to unprofessional conduct with prospective applicants. During
the sentencing phase, the military judge admitted over defense objection a
letter from the commanding general of the Air Force Recruiting Service that
stated in no uncertain terms that “unprofessional relationships with appli-
cants . . . will not be tolerated.” Id. at 75. The letter concluded with the fol-
lowing warning: “If you choose to ignore these important rules for the sake of
your own pleasure or esteem, you should not be surprised when, once you are
caught, harsh action follows.” Id. (Emphasis added.)
    The court in Pope found the letter “troubling because it convey[ed] the
command’s view that harsh action should be taken against an accused” who
committed the types of offenses that appellant was convicted of and thereby
created an appearance of improper command influence. Id. at 76. The court
further noted that the letter was admitted without an instruction to the
members as to how the evidence should be considered. On the facts of that
case, the court concluded that they were not convinced beyond a reasonable
doubt that the members were not influenced by the letter.




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                    United States v. Hill, No. ACM 38979


    Where the issue in Pope addressed the influence of a prosecution exhibit
admitted in a members case without limiting instruction wherein the ac-
cused’s commander indicated harsh action should be meted out for recruiter
misconduct in a recruiter misconduct case, here the trial counsel made a few
passing references to Air Force Core Values. As this court has previously
made clear, we “believe that the Air Force Core Values are meant to be inspi-
rational and aspirational, but are not interjected inappropriately as ‘com-
mand policy’ when referenced during the sentencing phase of a court-
martial.” United States v. Gatewood, 65 M.J. 724, 726 (A.F. Ct. Crim. App.
2007).
    Even if trial counsel’s references to Air Force Core Values was plainly er-
roneous, such references did not materially prejudice a substantial right of
Appellant. Appellant has presented no evidence that the sentencing authority
was impermissibly swayed by trial counsel’s argument, and we find none. As
part of the presumption that military judges know and follow the law absent
clear evidence to the contrary, we “presume that the military judge is able to
distinguish between proper and improper sentencing arguments.” United
States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007). This is true regardless of
whether the military judge states on the record what portion of the argument
is improper and will not be considered. Id. We are confident that Appellant
was sentenced by the military judge based on the evidence alone. As such, he
has not suffered material prejudice to a substantial right.

                              III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant 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



                 KURT J. BRUBAKER
                 Clerk of the Court




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