                         UNITED STATES, Appellee

                                         v.

                  Andre M. SANDERS, Staff Sergeant
                      U.S. Air Force, Appellant

                                  No. 09-0013
                           Crim. App. No. 36443

       United States Court of Appeals for the Armed Forces

                          Argued April 15, 2009

                           Decided May 12, 2009

                                   PER CURIAM

                                     Counsel


For Appellant: Captain Tiaundra Sorrell (argued); Colonel Nikki
A. Hall, Major Shannon A. Bennett, and Captain Michael A. Burnat
(on brief).


For Appellee: Major Jeremy S. Weber (argued); Colonel Gerald R.
Bruce (on brief); Major Donna S. Rueppell.


Military Judge:    Barbara E. Shestko


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Sanders, No. 09-0013/AF


     PER CURIAM:

     We granted review to consider whether the military judge

erred by admitting a handwritten letter found in Appellant’s

cell during the sentencing phase of the court-martial.        We hold

that any error did not materially prejudice the substantial

rights of Appellant, and affirm the decision of the United

States Air Force Court of Criminal Appeals (CCA).

                          I.    Background

     A military judge sitting as a general court-martial

convicted Appellant, contrary to his pleas, of forcible sodomy,

assault, and indecent assault.       Articles 125, 128, and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 928,

934 (2000).   The military judge sentenced Appellant to a

dishonorable discharge, confinement for fourteen years, and

reduction to the lowest enlisted grade.        The CCA affirmed the

findings and sentence.   United States v. Sanders, No. ACM 36443,

2008 CCA LEXIS 264, at *12, 2008 WL 2852962, at *5 (A.F. Ct.

Crim. App. July 15, 2008).

                               II.   Facts

     Over a one-month period during the summer of 2004,

Appellant anally sodomized a woman by force while using a

plastic grocery bag as a makeshift condom; struck another woman

on the head with his fists; and forcibly penetrated a third

woman’s vagina with his fingers.         During the sentencing phase of


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the court-martial, the Government moved to admit a handwritten

letter found in Appellant’s pretrial confinement cell.   The

letter states the following:

     To Shauna, my wife, I bequeth [sic] every posession [sic]
     and monetary entitlement the world, U.S. Government,
     Insurance agency, etc. owes, gives, entitles me to.

     To Aaron and Kyle, my sons, I give all entitlements to you
     through your loving, loyal, dedicated, God-fearing mother.

     I thank my parents for being my personal heroes and putting
     God into my life from Day One. I bequeth [sic] $14,000
     each of my entitlements to my parents Albert and Carol
     Sanders.

     The judge made her decesion [sic] prior to the trial.     She
     constantly remained in eye contact with the female
     prosecutor. This was small-town justice. She didn’t
     listen to our truths; only their lies.

     I didn’t know these people. They lied and they’re [sic]
     lies were ignored by the judge.

     More importantly, I love you Shauna. I’m sorry you have to
     go through this. Justice was not done.

     God is calling me to him. You 3 have given me so much joy.
     I can’t tell you how much I love you. You went from Bunny
     Boo to the most dedicated and loving woman I’ve ever known.

     I loyally and proudli [sic] served the Air Force. The
     people who caused this, I’ve prayed for them and I forgive
     them for lying.

     Shauna, give God the glory always.    He is real.

     Use your resources wisely. Move on with your life, keeping
     the boys 1st. Be a smart user of your resources; make your
     resources work for you and multiply.

     I’ve always dreamed that you and the boys would be blessed.
     Now, you will be.




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     I’m sorry Shauna. You’re the greatest and kindest person I
     know. You are the proof that God is good.

     The letter also contains in its margins Appellant’s name,

Appellant’s wife’s name, and the statements “Last Will and

Testament,” “Correction AMS,” and “I didn’t do anything I was

charged with.”

     Appellant’s counsel objected to the admission of the letter

on the grounds that it was not proper evidence in aggravation or

to show rehabilitative potential; there was no factual basis to

support its admission; it was protected by the spousal

privilege; and it was otherwise privileged.   After hearing

argument from both sides, the military judge ruled that the

letter was admissible as evidence of Appellant’s rehabilitative

potential.   On appeal, the CCA held that the letter was

admissible as aggravation evidence and that it therefore did not

need to decide its admissibility as rehabilitation evidence.

Sanders, 2008 CCA LEXIS 264, at *11, 2008 WL 2852962, at *4.

                         III.   Discussion

     Under Article 59(a), UCMJ, an error of law with respect to

a sentence can provide a basis for relief only where that error

materially prejudices the substantial rights of the accused.

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2002); United States v.

Bridges, 66 M.J. 246, 248 (C.A.A.F. 2008) (citing Article 59(a),

UCMJ; United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F.



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United States v. Sanders, No. 09-0013/AF


2005)).   Appellant argues that the letter was neither proper

rehabilitation nor aggravation evidence, that it was highly

prejudicial because of its attack on the military judge, and

that in any event the military judge did not conduct the

required balancing test on the record.      Rule for Courts-Martial

1001; Military Rule of Evidence 403.      If there was error in the

admission of the letter, we conclude that the alleged error was

not prejudicial under Article 59(a), UCMJ.

     The test for prejudice in a situation like this one is

whether the error substantially influenced the adjudged

sentence.   Griggs, 61 M.J. at 410 (citing United States v. Boyd,

55 M.J. 217, 221 (C.A.A.F. 2001)).      The letter contains a

farrago of bequests, assertions, excuses, and advice, some of

which are favorable to Appellant, although it also attacked the

military justice system and accused the military judge of

favoring the prosecution.   With respect to the latter, the

military judge stated that she would not consider the personal

attack on her contained therein.       As the sentencing authority, a

military judge is presumed to know the law and apply it

correctly, absent clear evidence to the contrary.      Bridges, 66

M.J. at 248 (citing United States v. Erickson, 65 M.J. 221, 225

(C.A.A.F. 2007); United States v. Mason, 45 M.J. 483, 484

(C.A.A.F. 1997)).   This Court presumes that a military judge




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follows her own rulings.   United States v. Hill, 62 M.J. 271,

276 (C.A.A.F. 2006) (citing United States v. Davis, 44 M.J. 13,

17 (C.A.A.F. 1996)).

     Apart from the personal attack, there is no indication that

the military judge gave significant weight to the rest of the

letter in arriving at the adjudged sentence.   Appellant was

convicted of forcible sodomy, assault, and indecent assault.

For forcible sodomy, the maximum sentence includes confinement

for life without eligibility for parole.    Manual for Courts-

Martial, United States pt. IV, para. 51.e(1) (2008 ed.).

Appellant received confinement for fourteen years.   The victim

of the forcible sodomy charge was cruelly attacked by Appellant,

and the victims of the assault and indecent assault charges

narrowly escaped more serious injury.   In light of the severity

of Appellant’s crimes, we are convinced that the admission of

the letter, if error, did not substantially influence the

adjudged sentence.

                           IV.   Decision

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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