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

                                  Before
                 J.A. FISCHER, D.C. KING, B.T. PALMER
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       MICHAEL A. WILLIAMS
                   CAPTAIN (O-3), U.S. MARINE CORPS

                           NMCCA 201500069
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 23 October 2014.
Military Judge: LtCol C.A. Miracle, USMC.
Convening Authority: Commanding General, 4th Marine
Aircraft Wing, New Orleans, LA.
Staff Judge Advocate's Recommendation: Col E.R. Kleis,
USMC.
For Appellant: Maj John Stephens, USMC.
For Appellee: LCDR Justin Henderson, JAGC, USN; LT James
Belforti, JAGC, USN.

                           24 November 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 general court-martial consisting of members convicted the
appellant, contrary to his pleas, of four specifications of
making a false official statement and two specifications of
larceny, in violation of articles 107 and 121, Uniform Code of
Military Justice, 10 U.S.C. §§ 907 and 921. The members
sentenced the appellant to confinement for twenty-six months, a
fine of $28,063.00, and a dismissal.      The convening authority
approved the sentenced as adjudged.
      The appellant now raises two assignments of error: (1) the
military judge erred, and violated MILITARY RULE OF EVIDENCE 404(b),
MANUAL FOR COURTS-MARTIAL, UNITED STATES, United States (2012 ed.) by
permitting the Government to offer the appellant’s confession
that he engaged in prostitution with “over fifty prostitutes” in
Thailand; and (2) that a sentence to twenty-six months of
confinement was inappropriate.
     After careful consideration of the record of trial and the
parties’ pleadings, we are satisfied that the findings and
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellate occurred. Arts. 59(a) and 66(c), UCMJ.
                             Background

     The appellant arrived at Naval Station Great Lakes and
checked into Marine Air Control Group 48 in June 2011, where he
represented he was a “bonafide bachelor” and was thus permitted
to move into government quarters set aside for that purpose.
However, the appellant also received Basic Allowance for Housing
(BAH) payments since he falsely reported that he lived in an
apartment in Chicago. The resultant theft of over $28,000.00 in
BAH funds was the basis for the larceny convictions.
     Upon discovering that the appellant was living in
government quarters, his command initiated a preliminary
inquiry. During the inquiry, the appellant made a series of
deceptive statements and produced several forged documents to
cover his deceit. These included forging a marriage license
indicating he was married to a Japanese national, forging a
lease for an apartment in Chicago, and falsifying a Navy
dependency application form. In addition, the appellant
provided the investigating officer a signed statement wherein he
claimed he was married, that he paid rent and utilities for a
Tokyo condo his spouse was living in, only used his government
quarters for storage, and that his sister had recently died and
he was having difficulty settling her estate and taking care of
his sixteen-year-old brother as a result-all statements that
were utterly false. However, the command took this officer at
his word and attempted to assist him.
     Shortly thereafter, the command became suspicious and
conducted further investigation. Eventually, the appellant’s
deceit became clear and the command discovered that the
appellant had also falsely represented that he went on leave to
                                  2
Texas, California, and Japan, when in fact he had used his
official passport to travel to Thailand for the purpose of
engaging in sex with prostitutes.
     The appellant was subsequently tried for the following
violations of the UCMJ:
I. Four specifications of making a false official statement, in
violation of Article 107 by signing leave requests falsely
representing that he was on leave in Texas, California, and
Japan when he in fact traveled to Thailand; by signing an
official statement wherein the appellant falsely made the claims
discussed infra; and two counts of signing Navy dependency
application forms when he knew he was not married. The
appellant was convicted of each of these specifications.
II. Two specifications of larceny, in violation of Article 121
by stealing BAH. The appellant was convicted of both
specifications.
III. One specification of forgery, in violation of Article 123
by falsifying signatures on a marriage license from Texas to
indicate that he was legally married. The appellant was
acquitted of this offense.
IV. One specification of conduct unbecoming an officer in
violation of Article 133 for, on divers occasions, wrongfully
using his official passport to travel to Bangkok, Thailand. The
appellant was acquitted of this offense.
V. One specification of wrongfully impeding an investigation in
violation of Article 134 by submitting fraudulent documents to
his military personnel center. The appellant was acquitted of
this offense.
     The appellant was also charged with one specification of
pandering, in violation of Article 134 for procuring a person to
engage in sexual intercourse for hire on divers occasions. The
judge dismissed this specification prior to trial for failure to
comply with MIL. R. EVID. 304(g) (lack of corroboration of a
confession). However, the Government immediately notified the
defense that it intended to offer the appellant’s statement as
an exhibit (wherein he states that he traveled to Bangkok to
procure prostitutes) under MIL. R. EVID. 404(b), arguing that the
evidence establishes the appellant’s motive for lying to his
command about his leave locations, as alleged in Specification 1
of Charge I.



                                3
     The defense objected, arguing that the evidence constituted
“uncharged misconduct” and was inadmissible under MIL. R. EVID.
404(b). Specifically, the defense argued that the probative
value of the evidence was substantially outweighed by its unfair
prejudice because the “Government can prove its case, that [the
appellant] provided false leave addresses . . . without
providing the members with information regarding soliciting
[sic] of prostitutes.”1
     The military judge admitted the exhibit. Prior to
sentencing, the defense stated it had no objection to admission
at sentencing of any of the exhibits admitted during the merits
and the exhibit was provided to the members for sentencing
purposes as well.
                                 Discussion
     We first address the appellant’s argument that the military
judge abused his discretion in admitting the appellant’s
statement. We review evidentiary rulings for an abuse of
discretion, United States v. Stanton, 69 M.J. 228, 230 (C.A.A.F.
2010), and will not overturn a military judge’s ruling unless it
is “‘arbitrary, fanciful, clearly unreasonable’ or ‘clearly
erroneous,’” United States v. McDonald, 59 M.J. 426, 430
(C.A.A.F. 2004) (quoting United States v. Miller, 46 M.J. 63, 65
(C.A.A.F. 1997)), or influenced by an erroneous view of the law,
id. (quoting United States v. Humpherys, 57 M.J. 83, 90
(C.A.A.F. 2002)).
     The test for admissibility of evidence of “uncharged
misconduct” is “‘whether the evidence of the misconduct is
offered for some purpose other than to demonstrate the accused’s
predisposition to crime and thereby to suggest that the
factfinder infer that he is guilty, as charged, because he is
predisposed to commit similar offenses.’” United States v.
Thompson, 63 M.J. 228, 230 (C.A.A.F. 2006) (quoting United
States v. Castillo, 29 M.J. 145, 150 (C.M.A. 1989)) (additional
citation omitted). Permissible purposes may include proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. MIL. R. EVID.
404(b).
     In ruling on the defense motion to exclude the appellant’s
statement under MIL. R. EVID. 404(b), military judges should apply
the three-part test articulated in United States v. Reynolds, 29
M.J. 105, 109 (C.M.A. 1989):


1
    Appellate Exhibit XI at 3.
                                     4
1. Does the evidence reasonably support a finding by the court
members that the appellant committed the prior act?
2. What fact of consequence is made more or less probable by the
existence of this evidence?
3. Is the probative value substantially outweighed by the danger
of unfair prejudice? On this third prong, the military judge
should consider the following factors: the strength of the proof
of the prior act; the probative weight of the evidence; the
potential to present less prejudicial evidence; the possible
distraction of the fact-finder; the time needed to prove the
prior conduct; the temporal proximity of the prior event; the
frequency of the acts; the presence of any intervening
circumstances; and the relationship between the parties. United
States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005).
     Here, the military judge considered these factors,
specifically determining:
1. The evidence reasonably supported a finding that the
appellant committed the prior act because “the strength of the
proof of the prior act [is] very high because it comes directly
from the accused’s admissions to [law enforcement].”2
2. The evidence was probative to two of the specifications.
First, Specification 1 of Charge I alleged the appellant falsely
represented that he was on leave in Texas, California, and Japan
and required proof that, inter alia, the statement was made with
the intent to deceive. The military judge found that
“[e]vidence that the accused did not want his command to know
where he was travelling because he was doing so to partake in
prostitution is probative evidence that the false statement of
his leave location was made with the intent to deceive his
command.”3
      Second, the sole Specification of Charge III required the
Government to prove that the appellant wrongfully used his
official passport and that such conduct was unbecoming of an
officer and a gentleman. “Unbecoming conduct” is defined as
“action or behavior in an official capacity which, in
dishonoring or disgracing the person as an officer, seriously
compromises that officer’s character as a gentleman[.]” MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 59(c)(2).
The military judge held that “evidence of the [appellant’s]

2
     AE XXII at 5.
3
    Id. at 4.
                                  5
statement of his purpose in . . . using the official passport is
therefore probative evidence of whether the alleged misuse of
the official passport was in fact conduct unbecoming.”4
3. Finally, the military judge applied the relevant Berry
factors to determine that the probative value of the evidence
was not substantially outweighed by the danger of unfair
prejudice. In addition to the strength of and high probative
value of the evidence previously discussed, the military judge
determined that less prejudicial evidence was unavailable and
the time needed to prove the prior conduct was minimal.
     Moreover, he found that the temporal proximity of the acts
“are relevant as occurring during the [charged] events alleged.”5
Finally, the military judge found the evidence did present a
risk of distraction to the members and so permitted the defense
both the ability "to ask additional voir dire questions on the
issue of prostitution as well as offer an instruction on the
issue for the court’s consideration.6
     The military judge’s findings and conclusions are not
“arbitrary, fanciful, clearly unreasonable, or clearly
erroneous” nor are they “influenced by an erroneous view of the
law.” Therefore, he did not abuse his discretion by admitting
the appellant’s statement regarding prostitution.
     Next, the appellant avers that his sentence to twenty-six
months’ confinement is “inappropriate” and cites several cases
involving BAH fraud along with the sentences those
servicemembers received. The appellant argues the cited cases
show “a definite disparity between [the appellant’s] punishment
and others similarly situated.”7
     This court reviews sentence appropriateness de novo.
United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). We “may
affirm only such findings of guilty and the sentence or such
part or amount of the sentence, as [we find] correct in law and
fact and determine[], on the basis of the entire record, should
be approved.” Art. 66(c), UCMJ. Sentence appropriateness
involves the judicial function of assuring that justice is done
and that the appellant gets the punishment he deserves. United

4
    Id. at 5.
5
    Id. at 6.
6
    Id.
7
    Appellant’s Brief at 15.


                                6
States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). As part of
that review, we give “‘individualized consideration’ of the
particular appellant ‘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) (quoting
United States v. Mamaluy, 27 C.M.R. 176, 180-81 (C.M.A. 1959)).
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, 146 (C.A.A.F. 2010).
     We have little difficulty concluding that the appellant’s
sentence is appropriate. Although an officer in the United
States Marine Corps, the appellant nonetheless engaged in fraud
and deceit at almost every opportunity over an eighteen month
period. This included stealing over $28,000.00 from the United
States and making numerous false statements, including
generating the sympathy of his command by claiming his sister
had perished and implying that a younger brother was in need of
assistance as a result. We have given individualized
consideration to this particular appellant, the nature and
seriousness of his offenses, the appellant’s record of service,
and all other matters contained in the record of trial and hold
that his sentence was appropriate.
     To the extent the appellant also requests relief because
his sentence was highly disparate when compared to those cited
in his brief, we deny that request as well. The appropriateness
of a sentence is generally determined without reference or
comparison to sentences in other cases. United States v.
Ballard, 20 M.J. 282, 283 (C.M.A. 1985). We are not required to
engage in comparison of specific cases “‘except in those rare
instances in which sentence appropriateness can be fairly
determined only by reference to disparate sentences adjudged in
closely related cases.’” United States v. Lacy, 50 M.J. 286,
288 (C.A.A.F. 1999) (citing Ballard, 20 M.J. at 283) (additional
citation omitted).
     “Closely related” cases are those that “involve offenses
that are similar in both nature and seriousness or which arise
from a common scheme or design.” United States v. Kelly, 40
M.J. 558, 570 (N.M.C.M.R. 1994); see also Lacy, 50 M.J. at 288
(citing examples of closely related cases as including co-actors
in a common crime, service members involved in a common or
parallel scheme, or “some other direct nexus between the
servicemembers whose sentences are sought to be compared.”) The
appellant bears the burden of demonstrating that any cited cases
are “closely related” to his case and that the sentences are

                                7
“highly disparate.” If the appellant meets that burden, then
the Government must show there is a rational basis for the
disparity. Lacy, 50 M.J. at 288; see also United States v.
Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001).
     The cited cases disclose no “common or parallel scheme,”
there were no “co-actors,” and the only similarity the appellant
alludes to is that the other cases involved BAH fraud. Under
these facts, that is not enough to satisfy his burden.8
                                 Conclusion

     The findings and sentence are affirmed.


                                   For the Court




                                   R.H. TROIDL
                                   Clerk of Court




8
  Finally, while not specifically assigned as an error, the appellant also
seems to complain that the military judge committed plain error by permitting
the members to consider evidence during sentencing that the appellant engaged
in prostitution. We have thoroughly considered this “error” and find it to
be without merit. United States v. Clifton, 35 M.J. 79, 83 (C.M.A. 1992).
                                      8
