              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
                   R.Q. WARD, J.A. FISCHER, D.C. KING
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      MARCO A. HERNANDEZ
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201300313
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 11 March 2013.
Military Judge: LtCol Leon Francis, USMC.
Convening Authority: Commanding General, 1st Marine
Division (REIN), Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: Col S.D. Marchioro,
USMC.
For Appellant: Gary Myers, Esq.; LT Jennifer Myers, JAGC,
USN.
For Appellee: LT Ann Dingle, JAGC, USN.

                          23 September 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

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 general court martial composed of officer and enlisted
members convicted the appellant, contrary to his pleas, of one
specification of violating a lawful order by consuming alcohol,
and two specification of sexual assault in violation of Articles
92 and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 892
and 920. The members sentenced the appellant to confinement for
15 years, total forfeitures, reduction to pay grade E-1, and a
dishonorable discharge. The convening authority approved the
sentence as adjudged.1

     The appellant raises four assignments of error.2 After
careful examination of the record of trial and the pleadings of
the parties, we are satisfied that the findings and the 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

     In May 2012, the appellant attended a party at the house of
his neighbor, Corporal RB and his wife, AB. AB’s brother, AW,
was staying at the home during this time and invited his
girlfriend AK to the party. The parties drank heavily at the
party which resulted in AK needing assistance to the upstairs
bedroom where, after vomiting, she fell asleep. AW sat with AK
to ensure her safety should she vomit again in her sleep. After
he determined that AK was “okay,” he departed.3

     Later in the evening, AB opened the door to the bedroom and
discovered the appellant on top of AK with both parties pants
pulled down.4 Although the appellant was making “moaning sounds
like they were having sex,”5 AK was not moving and appeared

1
  The convening authority’s action erroneously reflects that the appellant was
found guilty of a sexual “act” vice “contact” in Specification 2 of Charge
II. The appellant raises no error and we find no prejudice. However, the
appellant is entitled to accurate court martial records. United States v.
Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998). Accordingly, we shall
order the necessary corrective action in our decretal paragraph.
2
  I. Whether the military judge abused his discretion by not granting the
defense request for expert assistance regarding coercive interrogation
techniques?
 II. Whether the military judge erred by not staying or dismissing the
proceedings in light of the improper panel selection by the convening
authority?
 III. The Commandant of the Marine Corps widely publicized his preferred
outcome for sexual assault cases. His actions were actual and apparent
unlawful command influence that impacted the members in this case and
prejudiced the appellant.
IV. Whether the appellant’s sentence is excessive?
3
    Record at 772-73.
4
    Id. at 809.
5
    Id.
                                      2
unconscious. AB ran downstairs and reported what she saw to her
brother who ran to the bedroom, pulled the appellant off of AK,
and hit him several times. Eventually, law enforcement arrived
on scene and began questioning AK, during which time she
remained inattentive, continually tried to go back to sleep, and
vomited once more.6

     A few days later, Naval Criminal Investigative Service
(NCIS) Special Agent (SA) Concepcion and another agent went to
the brig, where the appellant had been placed in pretrial
confinement. The appellant was then brought into the interview
room in “good spirits” and “well-rested.”7 After introductions,
the appellant waived his Article 31(b), UCMJ, rights and agreed
to speak to the NCIS agents. The appellant initially explained
that he went into the upstairs bedroom to calm a sleeping
toddler who was in a crib. While in the bedroom, AK pulled on
his leg to get his attention and invited him to lay on the floor
with her. After lying down next to AK, the two engaged in
consensual sexual intercourse. Finally, the appellant claimed
that AW burst into the room and hit him, after which the
appellant walked home.

     SA Concepcion challenged the appellant’s story, after which
the appellant admitted that he had lied. The appellant then
provided a written statement wherein he claimed that he entered
the room, noticed AK sleeping, said a few words to her, removed
her pants and inserted his penis into her vagina. He recalled
that AK put her arms around him and “said some words.”8

     Several days later, SA Concepcion received a request from
the Government to re-interview the appellant to have him
elaborate on whether the appellant believed AK was asleep.
During this videotaped interview, SA Concepcion attempted
several times to have the appellant admit that AK was
unconscious at the time of penetration. However, the appellant
vacillated between admitting AK was asleep and claiming that she
was semi-conscious.

     Prior to trial, the defense made a timely motion to compel
an expert consultant in the field of law enforcement
interrogation techniques. The defense argued that this expert
was necessary to, inter alia, “educate the defense on the

6
    Id. at 960, 861.
7
    Id. at 1073.
8
    Prosecution Exhibit 1.
                                3
coercive nature of techniques utilized by law enforcement when
eliciting a confession.”9 The military judge denied the request,
concluding that the subject matter of the consultation would be
“irrelevant and unnecessary.”10

1.      Denial of Expert Assistance

     In his first assignment of error, the appellant argues that
the military judge abused his discretion by denying the defense
request for expert assistance regarding coercive interrogation
techniques.

     An accused is entitled to expert assistance before trial to
aid in the preparation of his defense upon a demonstration of
necessity.11 We review a military judge’s denial of expert
assistance for an abuse of discretion,12 but grant relief only if
that abuse “materially prejudices the substantial rights of the
accused.”13

     The defense sought to compel the Government to appoint Dr.
Streed as an expert consultant in the field of police
interrogations, offering evidence that the appellant was unable
to remember certain events and was compliant to facts suggested
to him during his interrogations. Assuming arguendo that the
military judge abused his discretion, we find no prejudice.

     Despite the military judge’s denial, the record indicates
the appellant was able to fully avail himself of Dr. Streed’s
services. In a letter provided prior to trial, Dr. Streed sets
forth that he was able to review the statements of AK and of the
appellant, the NCIS’s investigative reports, the transcript of
the NCIS interrogation of the appellant, the defense motion to
produce him as an expert witness, and transcripts of the NCIS
SAs’ testimony at the Article 32 hearing. Moreover, Dr. Streed
set forth specific concerns he had regarding the appellant’s
statement.

     Dr. Streed went on to discuss how suggestibility may have
impacted the appellant’s statements, and concluded by listing
9
     Appellate Exhibit VII at 3.
10
     AE XXXVIII at 8.
11
     United States v. Bresnahan, 62 M.J. 137 (C.A.A.F. 2005).
12
     Id.
13
     Art. 59(a), UCMJ.
                                         4
the factors he believed may have impacted the appellant’s
statement to NCIS. Finally, Dr. Streed watched the
interrogation video and was present at trial. As a result,
defense counsel conceded that Dr. Streed “knows about this case
. . . [h]e’s got an opinion on what was done in this case every
step of the way.”14 Taking these facts into account, we conclude
that the defense in fact utilized Dr. Streed as an expert
consultant, and find no prejudice to the appellant.

2.     Improper Panel Selection

     The appellant requested to be tried by members including
enlisted representation. As a result, the convening authority
was presented with a roster that contained officers in the ranks
of O-3 and above and enlisted Marines in the ranks of E-7 and
above. The convening authority selected only two individuals
from this roster. In addition, the convening authority selected
five members of the Headquarters element, and two commanding
officers within the Division. The final panel consisted of two
colonels, two lieutenant colonels, one captain, and four Master
gunnery sergeants. The appellant asserts the fact that the
convening authority utilized the roster and the fact that the
final panel included only very senior members, indicates the
convening authority improperly excluded members of lower ranks.

     Whether a panel is properly selected is a matter of law
reviewed de novo.15 Article 25(d)(2), UCMJ sets forth that the
“convening authority shall detail as members [of a court
martial] such members of the armed forces as, in his opinion,
are best qualified for the duty by reason of age, education,
training, experience, length of service, and judicial
temperament.” Military courts have routinely held that members
may not be selected solely on the basis of their rank.16 Thus,
while it is permissible to appoint senior, qualified court
members,17 the lower grades may not be systematically excluded.18

     While we recognize that “[w]hen rank is used as a device
for deliberate and systematic exclusion of qualified persons, it

14
     Record at 1143.
15
     United States v. Gooch, 69 M.J. 353, 358 (C.A.A.F. 2011).
16
     United States v. Nixon, 33 M.J. 433, 434 (C.M.A. 1991).
17
     United States v. White, 48 M.J. 251 (C.A.A.F. 1998).
18
     United States v. McClain, 22 M.J. 124, 129-30 (C.M.A. 1986).


                                         5
becomes an irrelevant and impermissible basis for selection,”19
we concur with the military judge and find no evidence of such
an improper exclusion in this case. The record indicates that
the convening authority was advised of the Article 25 criteria
and that he could “select as a member any service member in 1st
Marine Division that is senior to the accused who you believe
best meets the criteria in the reference.”20 Even if the roster
did improperly exclude members of lower ranks, the fact that the
convening authority selected seven names not listed on the
roster clearly indicates that he did not feel constrained by the
roster. Further, since every member selected was either a
member of the headquarters element or a commanding officer
within the Division, it is a reasonable inference that the
convening authority knew each member and properly applied the
Article 25 factors to their selection.

     The appellant relies upon McClain to argue that a panel
made up solely of senior officers and enlisted members was
improper. McClain does not stand for that proposition. In
McClain, the court found that “the staff judge advocate intended
to exclude junior members because he believed they were more
likely to adjudge light sentences.”21 There is no evidence of
similar improper motives in this case. Accordingly, we find no
error.

3.     Unlawful Command Influence

     Next, the appellant argues that his trial was affected by
unlawful command influence (UCI) flowing from statements the
Commandant of the Marine Corps (CMC) made in a series of
lectures known as the "Heritage Briefs.” The appellant claims
that the CMC’s comments caused both actual and apparent UCI.

     UCI is “the mortal enemy of military justice.”22 Article
37(a), UCMJ, 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


19
     Id. at 129-30.
20
     AE LXXX at 68.
21
     McClain, 22 M.J. at 129.
22
  United States v. Gore, 60 M.J. 178, 178 (C.A.A.F. 2004) (quoting United
States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986)).


                                      6
mere appearance of UCI may be “as devastating to the military
justice system as the actual manipulation of any given trial.”23

     To raise the issue of UCI at trial, the defense is required
to present “‘some evidence’” of UCI.24 Once the defense has done
so, the Government must then, beyond a reasonable doubt, either:
(1) disprove the predicate facts on which the allegation of UCI
is based; or (2) persuade the military judge that the facts do
not constitute UCI; or (3) prove at trial that the UCI will not
affect the proceedings.25

     This court is concerned not only with eliminating actual
UCI, but also with “eliminating even the appearance of [UCI] at
courts-martial.”26 Once apparent UCI is raised, the Government
bears the burden of convincing us beyond a reasonable doubt that
“an objective, disinterested observer, fully informed of all of
the facts and circumstances,” would not harbor a significant
doubt about the fairness of the proceedings.27 We review a
military judge’s ruling on UCI de novo.28 We review on appeal
whether UCI affected the findings or the sentence de novo.29

     Here, the parties litigated the issue of UCI at trial and
the military judge entered findings of fact and conclusions of
law wherein he found the defense presented no evidence of actual
UCI but that the Heritage Brief was “some evidence” of apparent
UCI.30 The military judge further concluded that the Government
showed “beyond a reasonable doubt that the apparent UCI has not
prejudiced the accused at this stage of the proceedings.”31


23
  United States v. Ayers, 54 M.J. 85, 94-95 (C.A.A.F. 2000) (citation and
internal quotation marks omitted).
24
  United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999) (quoting United
States v. Ayala, 43 M.J. 296, 300 (C.A.A.F. 1995)).
25
     Id. at 151.
26
  United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006) (quoting United
States v. Rosser, 6 M.J. 267, 271 (C.M.A. 1979)).
27
     Id.
28
     United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013).
29
     Biagase, 50 M.J. at 150-51.
30
     AE LXXXIX at 7.
31
     Id. at 8.
                                         7
     Prior to voir dire, the military judge required the members
to each read a copy of White Letter 3-12, wherein the CMC
explained that the Heritage Brief was not designed to influence
any Marine's decision at courts-martial or boards of inquiry and
informed them that they had an “inherent responsibility to
ensure the sanctity of our justice system, this includes the
presumption of innocence unless proven otherwise.”32 During the
ensuing voir dire, the members agreed that they: (1) could
follow the military judge’s instruction on presumption of
innocence and reasonable doubt; (2) did not have a set sentence
in their minds; (3) would give fair consideration to the entire
range of punishment; (4) had not formed an opinion about the
sentence that should be awarded in this case; (4) had all seen
or heard the Heritage Brief; and (5) would all exercise their
own independent judgment. Moreover, the members disclaimed
“outside pressure to make certain findings” based upon the
Heritage Brief; denied thinking that the Heritage Brief
pressured them to impose a particular sentence; agreed to base
the sentence on the evidence presented and not the comments made
by the CMC; agreed that they could be impartial despite the
Heritage Brief; and agreed that anything the CMC said or
inferred in the Heritage Brief was not relevant to the
appellant’s case.

     At the close of voir dire, the military judge heard
argument on the UCI motion and found that “a disinterested
observer, hearing of the [CMC’s] comments concerning sexual
assault and the criticism of the outcomes of certain cases could
harbor significant doubts as to the fairness of the proceedings
in the [appellant’s] case, since all of the members heard the
speech in some form.”33 However, the military judge found beyond
a reasonable doubt that “UCI has not prejudiced the [appellant]
at this stage of the proceedings.34 Nonetheless, and to “ensure
that the apparent UCI does not affect the proceedings,” the
military judge granted the defense an additional preemptory
challenge.35 At the close of voir dire, the defense raised four
challenges for cause, none of which were on grounds of UCI.
Three of the challenged members were excused.




32
     AE LXXXVII at 1.
33
     AE LXXXIX at 7.
34
     Id. at 8.
35
     Id.
                                8
     We find that the military judge's questions--and the
members’ responses36 wherein they disavowed that the CMC’s
comments would have any impact on them--coupled with the reading
of White Letter 3-12, sufficiently ameliorated cause for the
disinterested public to harbor significant doubt about the
fairness of the proceedings.

4.     Sentence Appropriateness

     In his last assignment of error, the appellant asserts that
his sentence to confinement for 15 years is “highly disparate”
when compared to sentences awarded in “closely related cases,”
despite the lack of aggravating factors and a “clean and
honorable” record.37 The appellant offers seven military cases
that involve a sexual assault of a victim incapacitated by
alcohol, none of which received a sentence of more than five
years.38

     A court-martial is free to impose any lawful sentence that
it determines appropriate.39 “Sentence appropriateness involves
the judicial function of assuring that justice is done and that
the accused gets the punishment he deserves.”40 This requires
“‘individualized consideration’ of the particular accused ‘on
the basis of the nature and seriousness of the offense and
character of the offender.’”41 After reviewing the entire
record, including the appellant’s combat record, we find that
the sentence is appropriate for this offender and his offenses.42




36
  The Heritage Brief questions were put to the panel en banc, requiring only
that the panel members provide yes or no responses, as indicated by raising
their hands or not. We note that this is not the optimum process for
thoroughly exposing, and therefore ameliorating, concerns such as apparent
UCI.
37
     Appellant's Brief of 10 Jan 2014 at 30.
38
     Id. at 26-29.
39
     United States v. Turner, 34 C.M.R. 215, 217 (C.M.A. 1964).
40
     United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
41
  United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United
States v. Mamaluy, 10 C.M.A. 102, 27 C.M.R. 176, 180-81 (C.M.A. 1959)).
42
  United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J.
at 395-96; Snelling, 14 M.J. at 268.
                                         9
                        Conclusion

     The findings and sentence as approved by the convening
authority are affirmed. The supplemental court-martial order
will reflect sexual “contact” instead of sexual “act” in
Specification 2 of Charge II.

                               For the Court



                               R.H. TROIDL
                               Clerk of Court




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