           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                          Second Lieutenant NICOLE A. DALMAZZI
                                    United States Air Force

                                               ACM 38808

                                              12 May 2016

          Sentence adjudged 21 January 2015 by GCM convened at Malmstrom Air
          Force Base, Montana. Military Judge: L. Martin Powell (sitting alone).

          Approved Sentence: Dismissal and confinement for 1 month.

          Appellate Counsel for Appellant: Major Thomas A. Smith.

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

                                                  Before

                              MITCHELL, DUBRISKE, and BROWN
                                   Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



DUBRISKE, Judge:

       Appellant, in accordance with her plea, was found guilty of wrongfully using
ecstasy, a Schedule I controlled substance, in violation of Article 112a, UCMJ, 10 U.S.C.
§ 912a. A second charge and specification, alleging Appellant obstructed the investigation
into her drug use by repeatedly dyeing her hair in an effort to avoid forensic detection, was
dismissed after acceptance of her plea pursuant to a pretrial agreement.

       Appellant was sentenced by a military judge sitting alone to a dismissal and one
month of confinement. The general court-martial convening authority approved the
sentence as adjudged.
       On appeal, Appellant raises two issues pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). First, Appellant alleges the military judge erred in not dismissing
the charges against her due to unlawful command influence. Second, Appellant argues her
sentence is inappropriately severe. Finding no error, we affirm the findings and sentence.

                                        Background

       In January 2014, the Air Force Office of Special Investigations (AFOSI) opened
drug investigations against a small number of commissioned officers, including Appellant,
who were stationed at six different Air Force installations. AFOSI investigators, during
the course of analyzing cell phones seized during these investigations, also discovered
some of these same officers had improperly disclosed proficiency testing materials for
officers operating intercontinental ballistic missile systems.

        The subsequent command-directed investigation of the test compromise allegations
identified almost 100 potential suspects, including Appellant. The test compromise
investigation drew significant media attention, and resulted in press conferences and
statements from senior leaders within both the Department of Defense and the Department
of the Air Force. These statements and press conferences were almost exclusively focused
on the test compromise investigation and, eventually, the disciplinary results and corrective
actions stemming from the investigation. While the original drug investigations were
mentioned during some senior leader statements as the reason the test compromise
allegations were discovered, only generic details about the actual investigations were ever
released. One senior leader, when specifically asked about the drug allegations, declined
to discuss any details as the criminal investigations were ongoing.

       Disciplinary action on the test compromise allegations was eventually handled by
the numbered air force commander with authority over the involved officers. There was
insufficient evidence to support disciplinary action against Appellant for compromising
proficiency testing materials.

        Appellant was eventually charged with using ecstasy on “divers” occasions and
impeding the AFOSI investigation against her. After charges against her were referred to
general court-marital, the basic details regarding her trial proceedings were released to the
public.

                              Unlawful Command Influence
      On appeal, Appellant claims the military judge erred in denying her motion to
dismiss all charges due to unlawful command influence. Appellant, adopting her
arguments at trial, primarily alleges the disciplinary fallout from the much publicized test
compromise investigation, which resulted in Appellant’s chain of command being relieved


                                              2                                    ACM 38808
of their leadership positions, pressured Appellant’s current chain of command to bring
criminal charges against her due to fear they would likewise lose their command positions
if they failed to hold Appellant accountable.

       Article 37(a), UCMJ, 10 U.S.C. § 837(a), states: “No person subject to [the UCMJ]
may attempt to coerce or, by any unauthorized means, influence the action of a court-
martial . . . or any member thereof, in reaching the findings or sentence in any case . . . .”
The mere appearance of unlawful command influence may be “as devastating to the
military justice system as the actual manipulation of any given trial.” United States v.
Ayers, 54 M.J. 85, 94–95 (C.A.A.F. 2000) (quoting United States v. Allen, 33 M.J. 209,
212 (C.M.A. 1991)).

        We review allegations of unlawful command influence de novo. United States v.
Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013). “On appeal, the accused bears the initial burden
of raising unlawful command influence. Appellant must show: (1) facts, which if true,
constitute unlawful command influence; (2) that the proceedings were unfair; and (3) that
the unlawful command influence was the cause of the unfairness.” Id. (citing United States
v. Richter, 51 M.J. 213, 224 (C.A.A.F. 1999)). The initial burden of showing potential
unlawful command influence is low, but is more than mere allegation or speculation.
United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002). Appellant must initially
present “some evidence” of unlawful command influence. Id. (quoting United States v.
Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999)).

       After an issue of unlawful command influence is raised by some evidence, the
burden shifts to the Government to rebut an allegation by persuading the court beyond a
reasonable doubt that: (1) the predicate facts do not exist; (2) the facts do not constitute
unlawful command influence; or (3) the unlawful command influence will not affect the
findings or sentence. Biagase, 50 M.J. at 151. “Where, as here, the issue is litigated on
the record at trial, 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. Jeter, 74 M.J. 772, 778
(A.F. Ct. Crim App. 2015), pet. rev. denied, 75 M.J. 63 (C.A.A.F. 2015).

       As an initial matter, we adopt the military judge’s findings of fact as they are
supported by the record. Upon our independent review of the question of law, we likewise
find Appellant failed to meet her initial burden of showing the pretrial publicity and
disciplinary response for the test compromise investigation constituted actual or apparent
unlawful command influence as it related to the charges in her case. The record clearly
establishes the senior leader and command involvement cited by Appellant was focused
almost exclusively on matters unrelated to Appellant’s case. As such, the argument her
command’s decision to move forward on drug charges was somehow influenced by a fear
of being relieved of command is speculative at best. In so holding, we would note the
decision to court-martial a commissioned officer accused of repeatedly using illegal


                                              3                                    ACM 38808
narcotics, instead of imposing some form of administrative action, is not an anomaly within
the military justice system.

       Moreover, as noted by the military judge, Appellant’s theory that her chain of
command was unduly concerned about the consequences of disciplinary inaction was
rebuffed by the fact that action was not taken against her for compromising testing
materials. Commanders fearful they would meet the same fate as their predecessors should
have driven them to hold Appellant accountable for all possible disciplinary violations.
Appellant’s speculative claim is therefore insufficient in our opinion to shift the burden of
proof to the Government on this issue.

        Assuming, arguendo, that Appellant produced some evidence that unlawful
command influence had the potential to impact the trial proceedings, we find beyond a
reasonable doubt that this judge alone case was not impacted by actual or apparent unlawful
command influence. An objective, disinterested member of the public, fully informed of
all facts and circumstances, would not harbor a significant doubt as to the fairness of
Appellant’s trial. See United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006).

                                 Sentence Appropriateness

       This court reviews sentence appropriateness de novo. United States v. Lane, 64 M.J.
1, 2 (C.A.A.F. 2006). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offense[s], 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, 148 (C.A.A.F. 2010).

       After giving individualized consideration to this particular Appellant, her relatively
brief record of service, the nature and seriousness of the offense, and all other matters
contained in the record of trial, we decline to grant Appellant the relief she requests before
this court. The approved sentence for Appellant’s repeated use of an illegal drug is not
unduly harsh or otherwise inappropriate in our opinion.

                                         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).




                                              4                                    ACM 38808
Accordingly, the findings and the sentence are AFFIRMED.




             FOR THE COURT


             LAQUITTA J. SMITH
             Appellate Paralegal Specialist




                                              5            ACM 38808
