This opinion is subject to administrative correction before final disposition.




                                Before
                  CRISFIELD, GASTON, and STEWART
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                        Matthew W. FAUS
                   Sergeant (E-5), U.S. Marine Corps
                               Appellant

                             No. 201900063

                         Decided: 27 August 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                              Military Judge:
                      Jeffrey V. Munoz (arraignment)
                    John L. Ferriter (motions and trial)

 Sentence adjudged 13 October 2018 by a general court-martial
 convened at Marine Corps Base Camp Pendleton, California,
 consisting of officer and enlisted members. Sentence approved by the
 convening authority: reduction to pay grade E-1, confinement for five
 years, and a dishonorable discharge.

                           For Appellant:
                   Ms. Catherine K. Cherkasky, Esq.
          Lieutenant Commander Kevin R. Larson, JAGC, USN

                             For Appellee:
                 Lieutenant Kimberly Rios, JAGC, USN
           Lieutenant Commander Timothy Ceder, JAGC, USN
                 United States v. Faus, NMCCA No. 201900063
                             Opinion of the Court

   Chief Judge Emeritus CRISFIELD delivered the opinion of the Court,
   in which Senior Judge GASTON and Judge STEWART joined.

                           _________________________

         This opinion does not serve as binding precedent, but
          may be cited as persuasive authority under NMCCA
                   Rule of Appellate Procedure 30.2.

                           _________________________

CRISFIELD, Chief Judge Emeritus:
   Appellant was convicted, contrary to his pleas, of two specifications of as-
sault consummated by a battery, one specification of child endangerment,
and three specifications of communicating a threat, in violation of Articles
128 and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 928, 934
(2012 & Supp. III 2016).
    Appellant raises three assignments of error [AOE]: (1) the military judge
abused his discretion when he failed to declare a mistrial following the trial
counsel’s rebuttal argument; (2) Appellant’s sentence is inappropriately
severe; and (3) the military judge abused his discretion in refusing to grant
Appellant’s motion under Military Rule of Evidence 412 to offer into evidence
certain text messages between Appellant and one of his victims. 1
   After careful consideration of the record of trial and the pleadings of the
parties, we find no prejudicial error and affirm.

                                I. BACKGROUND

   Appellant’s convictions arise out of his relationships with his wife, A.M.F.,
and a girlfriend, C.S. Appellant squeezed A.M.F.’s neck with his hands while
she was holding their infant child. That incident was the basis for charges of
aggravated assault—with a means or force likely to produce death or griev-
ous bodily harm—and child endangerment. Appellant was acquitted of this




   1 AOE (3) is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). Having carefully considered that assignment of error, we find it to be without
merit. See United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992); United States v.
Matias, 25 M.J. 356, 361 (C.M.A. 1987), cert. denied, 485 U.S. 968 (1988).




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                     United States v. Faus, NMCCA No. 201900063
                                 Opinion of the Court

aggravated assault, but convicted of the lesser included offense of assault
consummated by a battery, as well as child endangerment.
    After A.M.F. separated from him, Appellant started a relationship with
C.S. In the course of that relationship Appellant unlawfully grabbed C.S.
around her torso and threatened to kill her, police officers, and two identified
men whom Appellant believed to be dating C.S. These actions were the basis
for charges of aggravated assault and communicating threats to kill multiple
individuals. Appellant was acquitted of aggravated assault against C.S., but
convicted of its lesser included offense of assault consummated by a battery.
He was also convicted of three specifications of communicating a threat.
   In addition to the charges described above, he was charged with, but ac-
quitted of, rape, sexual assault, another aggravated assault, and two other
assaults consummated by a battery against C.S.; rape and aggravated as-
sault against a third alleged victim; and rape against a fourth alleged victim.
    The trial counsel made closing and rebuttal arguments, accompanied by a
PowerPoint presentation, that included multiple statements that drew
objections from the civilian defense counsel, many of which the military judge
sustained. At one point, the military judge sua sponte interrupted the trial
counsel’s argument to provide the following curative instruction:
         To the extent trial counsel’s argument could be interpreted as
         commenting or rendering an opinion on evidence in other pros-
         ecutions, that must be disregarded by you. You must rely on
         the testimony and evidence in this case only during your delib-
         erations. 2
   In his general instructions to the members prior to their deliberations, the
military judge again addressed the trial counsel’s comments:
            I previously provided you with an instruction in this regard,
         but I’m going to amplify it now and reiterate it to you.
            During trial counsel’s closing argument and rebuttal argu-
         ment, he made statements that could be interpreted, one, that
         he was expressing his personal decision or opinion to you about
         the evidence and what your decision in this case should be. To
         the extent that that was the way it was perceived by you, it
         must be completely disregarded. Okay? Trial counsel argues on




   2   R. at 1335.




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                      United States v. Faus, NMCCA No. 201900063
                                  Opinion of the Court

         behalf of the prosecution, but his personal opinion or belief is
         completely irrelevant to your deliberations.
             ....
             The second is similar to what I already advised you, is that
         to the extent any of his comments or argument could be inter-
         preted that he was providing you with information or opinions
         about any other prosecutions that have ever occurred, that,
         likewise, is completely irrelevant to your deliberations and
         must be completely disregarded by you. 3
    As the members were deliberating, Appellant moved for a mistrial for
prosecutorial misconduct during the trial counsel’s closing and rebuttal
arguments. In litigating the motion, Appellant’s civilian defense counsel
proposed an alternative remedy to a mistrial: “[A]s an alternative, I would
suggest perhaps instructing them to disregard his entire closing, his entire
closing statement because it’s littered throughout his closing statement,
blurring the lines of Hills.” 4
   The civilian defense counsel also requested that the military judge inter-
rupt the members’ deliberations to provide further curative instructions to
address specific comments made by the trial counsel. The military judge
agreed, called the members back to the courtroom, and instructed them:
             There’s something I need to address with you, and it is in
         the vein of a couple of instructions I’ve already provided to you;
         specifically, about three minutes before you went into your de-
         liberations, I gave you instructions, in general terms, about
         some of the comments made by the prosecutor during closing
         argument.
             I now draw your attention to three specific statements, and
         I don’t have them verbatim, but this is close to what was said,
         that you must disregard in their entirety and you cannot con-
         sider for any reason or any of the inferences that you think
         could be drawn from them.
            First, words to the effect that “Matt Faus is an iceberg of
         misconduct.” You must disregard that in its entirety and not
         draw any inferences from it.


   3   Id. at 1411.
   4   Id. at 1424.




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                      United States v. Faus, NMCCA No. 201900063
                                  Opinion of the Court

             Second, “NCIS finds misconduct everywhere they look.” You
         must disregard that in its entirety and not draw any inferences
         at all from that statement.
            And, third, “at least four women have accused Sergeant
         Faus of these charges.” You must disregard that in its entirety
         and not draw any inferences whatsoever from that statement.
             Is there any member who is unable to comply with my in-
         struction?
             Negative response from the members. 5
   Around two and a half hours later the military judge determined that he
would grant the Defense its alternative remedy. He brought the members
back into the courtroom and instructed them:
              I understand you are in the middle of your deliberations on
         findings, and I hesitate to interrupt them, yet again, but I find
         it to be required under the circumstances.
            I need to remind you of the following instructions that I
         previously provided to you:
            Number one, arguments of counsel are not evidence in this
         case. Argument is made by counsel to attempt to assist you in
         understanding and evaluating the evidence, but you must base
         the determination of the issues in this case on the evidence as
         you remember it and apply the law as I instruct you.
            Two, only matters properly before the Court as a whole
         should be considered by you. The final determination as to the
         weight or significance of the evidence and the credibility of
         witnesses in this case rests solely upon you.
             I find that several of the references made during the gov-
         ernment’s closing and rebuttal arguments were improper.
         While I already sustained multiple objections during the course
         of the argument and previously provided you with instructions
         in that regard, I find that further remedy is required. Allowing
         you to proceed with your deliberations without giving you this
         additional instruction would not be in the interests of a fair
         and just proceedings.



   5   Id. at 1428.




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                      United States v. Faus, NMCCA No. 201900063
                                  Opinion of the Court

             At this point, I’m directing you to completely disregard the
         prosecution’s closing argument in its entirety. Your delibera-
         tions are carried out in secrecy for a variety of reasons under
         the law. However, under these circumstances, to the extent that
         your deliberations have at any point referenced arguments
         made by the prosecution, either in their closing argument or re-
         buttal argument, those deliberations must be disregarded by
         you, and they cannot be part of your deliberative process on
         determinating [sic] the findings in this case.
            Is there any member who is not able to comply with these
         additional instructions?
             That is a negative response from the members. 6
    After the members returned to their deliberations, the military judge ad-
vised the parties in a subsequent Article 39(a), UCMJ, session that he had
not yet made a determination on the mistrial motion, but had instructed the
members to disregard the trial counsel’s argument because additional in-
structions would have a diminishing effect the longer the members deliberat-
ed. Appellant’s civilian defense counsel requested that the military judge
“hold off your ruling on the motion for mistrial until we receive a verdict.” 7
   After the members announced their findings, acquitting Appellant of the
majority and most serious of the charged offenses, Appellant’s civilian de-
fense counsel requested and was granted time to consult with Appellant
about their motion for a mistrial. After this consultation, the civilian defense
counsel informed the military judge, “The motion I previously made for a
mistrial, after consulting with my client, based upon the findings, we are
withdrawing the motion for mistrial.” 8 The military judge responded, “Very
well,” and did not rule on the motion. 9
   Additional facts necessary to resolve the AOEs raised are addressed be-
low.




   6   Id. at 1428-29 (emphasis added).
   7   Id. at 1432.
   8   Id. at 1440.
   9   Id.




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               United States v. Faus, NMCCA No. 201900063
                           Opinion of the Court

                              II. DISCUSSION

A. Appellant Waived His Motion for a Mistrial
    Appellant asserts that the military judge abused his discretion by failing
to order a mistrial following the members’ announcement of the findings. We
disagree.
    “The military judge may, as a matter of discretion, declare a mistrial
when such action is manifestly necessary in the interest of justice because of
circumstances arising during the proceedings which cast substantial doubt
upon the fairness of the proceedings.” Rule for Courts-Martial [R.C.M.]
915(a). However, “[t]he power to grant a mistrial should be used with great
caution, under urgent circumstances, and for plain and obvious reasons.”
R.C.M. 915(a), Discussion. As our superior court has explained,
       a mistrial is an unusual and disfavored remedy. It should be
       applied only as a last resort to protect the guarantee for a fair
       trial or where the military judge must intervene to prevent a
       miscarriage of justice. Because of the extraordinary nature of a
       mistrial, military judges should explore the option of taking
       other remedial action, such as giving curative instructions.
United States v. Short, 77 M.J. 148, 150 (C.A.A.F. 2018) (citations and inter-
nal quotation marks omitted). To that end, the rule requires that “[o]n motion
for a mistrial or when it otherwise appears that grounds for a mistrial may
exist, the military judge shall inquire into the views of the parties on the
matter . . . .” R.C.M. 915(b) (emphasis added).
    Here, Appellant’s trial defense counsel moved for a mistrial due to im-
proper comments made during the Government’s closing arguments, many of
which the military judge had already addressed through curative instructions
after previously sustaining the Defense’s objections to them. In litigating the
mistrial motion, Appellant’s counsel requested, as alternative remedies, first
that the military judge issue curative instructions regarding some of the trial
counsel’s statements and subsequently that he take the extraordinary step of
instructing the members to disregard the Government’s closing and rebuttal
arguments in their entirety. During the members’ deliberations, the military
judge granted these remedies and so instructed the members. Even so, the
military judge notified the parties he was still weighing whether more should
be done, and on hearing this, Appellant’s defense counsel specifically re-
quested that the military judge delay any further decision on the mistrial
motion until after findings were announced. After that announcement—
resulting in Appellant’s acquittal of the vast majority and most serious of the
16 specifications—and after consultation with Appellant, Appellant’s counsel


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                   United States v. Faus, NMCCA No. 201900063
                               Opinion of the Court

notified the military judge he was withdrawing his mistrial motion. Upon
receiving and acknowledging the Defense view that it did not desire any
further action on the matter, the military judge issued no ruling on the
withdrawn motion.
    We find waiver on these facts. “Whether an appellant has waived an issue
is a legal question that this Court reviews de novo. Waiver is different from
forfeiture. Whereas forfeiture is the failure to make the timely assertion of a
right, waiver is the intentional relinquishment or abandonment of a known
right.” United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020) (citations and
internal quotation marks omitted). Appellant essentially argues that the
military judge should have overridden Appellant’s own considered decision,
in consultation with his trial defense counsel, to withdraw his own mistrial
motion. Appellant does not explain his about-face, merely stating: “Sgt Faus’
decision to withdraw the motion for a mistrial after the findings should not
prohibit him from receiving relief for the obvious and uncontroverted miscon-
duct on the part of the prosecutor.” 10
     By affirmatively withdrawing his motion for mistrial, after specifically
consulting on the issue with his trial defense counsel, Appellant intentionally
relinquished and abandoned a known right. Appellant made this decision
after the issue of the Government’s closing and rebuttal arguments was
litigated in detail and the Defense had obtained (1) its requested alternative
remedy (i.e., the military judge’s instruction to the members to disregard the
entirety of the Government’s closing arguments); (2) a delay of any mistrial
ruling until after findings were reached; and (3) favorable findings from the
members acquitting Appellant of the majority and most serious of the charg-
es against him. We decline to review such waived issues because a valid
waiver leaves no error to correct on appeal. United States v. Ahern, 76 M.J.
194, 197 (C.A.A.F. 2017).
    Even if not waived, this issue would merit no relief. We have recently im-
plored military judges to take quick action sua sponte to stop improper
conduct by trial counsel—irrespective of whether it appears intentional or
inadvertent. United States v. Nichol, No. 201800286, 2020 CCA LEXIS 178,
at *14 (N-M. Ct. Crim. App. May 28, 2020) (unpub. op.). In this case, the
military judge did just that: he addressed the Government’s improper argu-
ments as they arose, sustained objections where appropriate, and issued
curative instructions. He then gave due consideration to the Defense motion



   10   Appellant’s Brief at 13.




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                United States v. Faus, NMCCA No. 201900063
                            Opinion of the Court

for mistrial, inquired into the views of the parties on the matter, granted the
Defense’s requests for multiple forms of alternative relief, and ultimately
acceded to Appellant’s stated desire to delay and then abandon any right to a
mistrial once findings were announced. The military judge’s proactive over-
sight throughout these proceedings was fully consistent with his “sua sponte
duty to insure that [the] accused receive[d] a fair trial,” United States v. Watt,
50 M.J. 102, 105 (C.A.A.F. 1999) (citation and internal quotations omitted).
His decision to not override Appellant’s considered decision to withdraw his
motion for a mistrial was proper and not an abuse of discretion.

B. Appellant’s Sentence is Appropriate
    Appellant asserts that his sentence of reduction to paygrade E-1, five
years’ confinement, and a dishonorable discharge is inappropriately severe.
We review sentence appropriateness de novo. United States v. Lane, 64 M.J.
1, 2 (C.A.A.F. 2006). “Sentence appropriateness involves the judicial function
of assuring that justice is done and that the accused gets the punishment he
deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This
requires our “individualized consideration of the particular accused on the
basis of the nature and seriousness of the offense and the character of the
offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation
and internal quotation marks omitted). In making this assessment, we
analyze the record as a whole. Healy, 26 M.J. at 395-97. Despite our signifi-
cant discretion in determining sentence appropriateness, we may not engage
in acts of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
    Appellant was convicted of physically assaulting two women. He was also
convicted of child endangerment by culpable negligence in connection with
one of those assaults due to the fact that his victim was holding their infant
child while he was assaulting her. He was also convicted of three specifica-
tions of communicating threats to kill and injure multiple people. After the
military judge merged two of the specifications for sentencing purposes, the
maximum sentence Appellant could have received for all these offenses was
reduction to paygrade E-1, total forfeitures of pay and allowances, eight
years’ confinement, and a dishonorable discharge.
    We find that a dishonorable discharge was an appropriate punishment for
Appellant’s serious criminal misconduct. We also find that five years’ con-
finement, constituting 63% of the maximum authorized, is appropriate, in
light of not only his acts of violence against multiple victims, but also the
many threats to kill multiple people that he intentionally communicated in
an extraordinary series of text and phone messages that were saved by C.S.
His sentence is not inappropriate.




                                        9
               United States v. Faus, NMCCA No. 201900063
                           Opinion of the Court

C. The Convening Authority’s Action
    The Convening Authority’s Action’s description of confinement credit is
incomplete. It notes that Appellant is entitled to 255 days of pretrial con-
finement credit, but omits the fact that the military judge awarded Appellant
an additional 28 days of credit in accordance with R.C.M. 305(k). This addi-
tional credit is accurately reported in the Report of Results of Trial (DD Form
2707-1).

                             III. CONCLUSION

   The findings and sentence are AFFIRMED. The supplemental court-
martial order will reflect that Appellant was awarded 28 days of additional
confinement credit pursuant to R.C.M. 305(k).
   Senior Judge GASTON and Judge STEWART concur.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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