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

                                Before
           K.J. BRUBAKER, K.M. MCDONALD, M.C. HOLIFIELD
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                        LAMONT E. HOYES
          CULINARY SPECIALIST FIRST CLASS (E-6), U.S. NAVY

                           NMCCA 201300303
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 25 January 2013.
Military Judge: CDR Colleen Glaser-Allen, JAGC, USN.
Convening Authority: Commander, Naval Air Force Atlantic,
Norfolk, VA.
Force Judge Advocate's Recommendation: CAPT T.J. Welsh,
JAGC, USN.
For Appellant: LT Jennifer L. Myers, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; Capt
Matthew M. Harris, USMC.

                               4 June 2015

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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 panel of officer and enlisted members sitting as a
general court-martial convicted the appellant, contrary to his
pleas, of conspiracy to commit aggravated sexual assault,
violation of a lawful general order (fraternization), making
false official statements, aggravated sexual assault, and
abusive sexual contact in violation of Articles 81, 92, 107 and
120, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 892,


Judge McDonald participated in the decision of this case prior to detaching
from the court
907, and 920. 1 The members sentenced the appellant to
confinement for 42 months and a dishonorable discharge.

      Prior to authentication of the record, the defense filed a
motion with the military judge seeking a new trial pursuant to
RULE FOR COURTS-MARTIAL 1210, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), alleging newly discovered evidence and fraud on the
court-martial. The military judge granted the defense motion
and ordered a new trial. On 31 December 2013, we granted an
appeal by the Government pursuant to Article 62, UCMJ, holding
that the military judge abused her discretion in finding witness
statements to be newly discovered evidence or, in the
alternative, fraud on the court-martial. 2        The court vacated the
ruling of the military judge and returned the record of trial to
the Judge Advocate General for further proceedings not
inconsistent with that opinion. The convening authority (CA)
approved the sentence as adjudged, and, except for the
dishonorable discharge, ordered it executed. Now that post-
trial processing is complete, we review the case under Article
66, UCMJ.

     The appellant raises four assignments of error (AOEs): (1)
that a cumulative effect of evidentiary errors allowed the
Government’s primary witness to mislead the members; (2) that
the appellant received ineffective assistance of counsel; (3)
that the charges were unreasonably multiplied; and, (4) that the
CA’s instruction restricting eligibility for court-martial
membership frustrated the appellant’s right to a properly
convened court-martial.

     We find merit in the appellant’s fourth AOE, rendering the
others moot. We will take appropriate action in the decretal
paragraph.




1
  As the offense allegedly occurred on 26 July 2011, the version of Article
120, UCMJ, in effect from 1 Oct 2007 through 27 June 2012 applies.
2
  United States v. Hoyes, No. 201300303, 2013 CCA LEXIS 1075 (N.M.Ct.Crim.App.
31 Dec 2013), rev. denied, __ M.J. __, No. 14-6004/NA, 2014 CAAF LEXIS 302
(C.A.A.F. Mar. 25, 2014).


                                      2
                                   Background 3

     In July 2008, Commander, Naval Air Force Atlantic
(COMNAVAIRLANT) issued an instruction 4 to subordinate commands
establishing the procedure for nominations of prospective court-
martial members. That instruction directed each subordinate
command to provide a certain number of nominees in the grades of
O-5, O-4, “LT [Lieutenant] or Below” and “Enlisted (E7/E8/E9).” 5
The instruction did not call for nominees below E-7, regardless
of how junior a particular appellant may be, and did not call
for anyone O-6 or above. 6

     The appellant avers that members below the pay grade of E-
7, above the pay grade O-5, and all warrant and chief warrant
officers were impermissibly and systematically excluded from the
nomination process by the CA.

                            Members Selection

     We review claims of error in the selection of court-martial
members de novo. United States v. Kirkland, 53 M.J. 22, 24
(C.A.A.F. 2000). We look at three primary factors to determine
whether an impermissible member selection has taken place:

        1. Improper motive in packing a member pool;

        2. Systematic exclusion of potential members based on
        rank or other impermissible variable; and,

        3. Good faith attempts to be inclusive and open the
        court-martial process to the entirety of the military
        community.

United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). If
either of the first two criteria is present, the process is


3
  This court described the facts surrounding the charged offenses in great
detail in its 31 December 2013 opinion. Id. at *2-5. As our holding today
is based solely upon the member selection process, we do not repeat this
earlier recitation of facts.
4
  COMNAVAIRLANT Instruction 5813.1H, 29 Jul 2008. (Supp. Clemency Request of
15 May 2004, encl. (1).)
5
    Id. at 2.
6
  It is unclear, as the Government concedes, whether the “LT or Below”
language intended only O-1 to O-3 nominees or permitted nomination of warrant
and chief warrant officers. Appellee’s Brief of 20 Apr 2015 at 57.

                                      3
impermissible. Id. These criteria are not only considered in
the actual panel selection process, but also in the process of
presenting nominations to the CA. United States v. Roland, 50
M.J. 66, 69 (C.A.A.F. 1999).

     In a case of systematic exclusion of members by rank, it is
the responsibility of the defense to establish the improper
exclusion. Kirkland, 53 M.J. at 24. Once improper exclusion
has been shown, the burden shifts to the Government “to
demonstrate that the error did not ‘materially prejudice the
substantial rights of the accused.’” Dowty, 60 M.J. at 173
(quoting Art. 59(a), UCMJ).

     The Government urges us to find waiver in the appellant’s
failure to raise this issue before trial. See R.C.M. 912(b)(3).
While such an objection “ordinarily . . . must be made before
trial,” Dowty, 60 M.J. at 174 (citation and interal quotation
marks omitted), we may “pass[] over the procedural deficiency to
reach the substance of the issue.” Id. The seriousness of the
alleged error and the absence of any evidence that the appellant
was aware of the COMNAVAIRLANT instruction prior to trial compel
us to address the appellant’s claim.

     We find the appellant has established that the instruction
improperly excluded potential members from the selection process
on the basis of rank. Thus we turn to the Government to
determine if it has met its burden to show lack of harm——and
find it has not. The Government has provided no evidence upon
which this court can conclude the CA properly considered the
Article 25, UCMJ, factors in selecting the members for the
court-martial, or that he knew he was free to select members not
on the list provided by his staff judge advocate (SJA). See
United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011)
(similar error found to have created no material prejudice where
the record reflects that the SJA properly advised the CA that he
could select members from the SJA-provided nomination list or
select others as he deemed appropriate, and the CA personally
selected the members); United States v. Roland, 50 M.J. 66, 69
(C.A.A.F. 1999) (no prejudice from improper, rank-based
nomination process where “[t]he record establishes how the
members were selected, and there is no indication of
impropriety”); United States v. Nixon, 33 M.J. 433, 435 (C.M.A.
1991) (exclusion based on rank overcome by “explicit testimony
of the [CA] as to his compliance with the statutory criteria”).

     The Government, presumably, could have presented testimony
or affidavits from the CA or the Force Judge Advocate (FJA) to


                                4
demonstrate how the member selection process actually occurred. 7
Instead, the Government merely argues that the instruction
indicates that any nominations are “[i]n addition to
COMNAVAIRLANT staff members who regularly sit on courts-
martial.” 8 However, absent some evidence that the error in the
nomination process was actually remedied by the consideration of
potential members on the CA’s staff, this argument is wanting.
We therefore find the Government has failed to meet its burden
of showing the improper exclusion of potential members did not
materially prejudice the appellant.

                                 Conclusion

     The findings of guilty and the sentence are set aside. The
record of trial is returned to the Judge Advocate General of the
Navy for remand to an appropriate CA with a rehearing
authorized.

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




7
  The Government has now had two opportunities to provide such evidence.
Trial defense counsel raised this issue in the 15 May 14 Supplemental
Clemency Request. It was not addressed during post-trial processing,
however, as the FJA failed to acknowledge the allegation of legal error.   See
R.C.M. 1106(d)(4).
8
    Appellee’s Brief at 56.

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