UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 LIND, 1 KRAUSS, 2 and PENLAND
                                    Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                             Staff Sergeant GABRIEL GARCIA
                               United States Army, Appellant

                                        ARMY 20130660

               Headquarters, U.S. Army North Atlantic Treaty Organization
                          Reynold P. Masterton, Military Judge
               Lieutenant Colonel Michelle L. Ryan, Staff Judge Advocate


For Appellant: Mr. Philip D. Cave, Esquire; Captain Patrick J. Scuderi, JA (on
brief).

For Appellee: Lieutenant Colonel Kirsten M. Dowdy, JA; Major A.G. Courie III,
JA; Major Steven J. Collins, JA (on brief).


                                         18 August 2015

                                    ---------------------------------
                                    MEMORANDUM OPINION
                                    ---------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

PENLAND, Judge:

       A panel with enlisted representation sitting as a general court-martial
convicted appellant, contrary to his pleas, of two specifications of maltreatment, two
specifications of rape, and one specification of forcible sodomy in violation of
Articles 93, 120, and 125, Uniform Code of Military Justice,10 U.S.C. §§ 893, 920,
925 (2006 & Supp. II 2009) [hereinafter UCMJ]. The panel sentenced appellant to a
dishonorable discharge, confinement for five years, and reduction to the grade of


1
    Senior Judge LIND took final action on this case prior to her retirement.
2
    Judge KRAUSS took final action on this case prior to his retirement.
GARCIA—ARMY 20130660

E-1. The convening authority approved the adjudged sentence and credited appellant
with sixty-three days against the sentence to confinement.

      We review this case pursuant to Article 66, UCMJ. Appellant assigns
multiple errors, one of which warrants discussion and relief. 3 We have considered
the matters personally raised by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982); they lack merit.

                             PROCEDURAL BACKGROUND

      Appellant was charged with raping and forcibly sodomizing Staff Sergeant
(SSG) CC, maltreating Sergeant (SGT) KH, SGT CS, and SSG KK, and sexually
harassing Chief Warrant Officer Two (CW2) TF. The panel convicted appellant of
only offenses involving SSG CC, SGT KH, and SSG KK. Before trial, appellant’s
defense counsel alleged apparent unlawful command influence (UCI) regarding the
charged rapes and forcible sodomy and moved the military judge to dismiss those
charges. Alternatively, appellant requested the military judge prohibit a punitive
discharge. In essence, appellant argued the President’s and senior Department of
Defense officials’ statements regarding sexual assault, and related training sessions,
Army-wide and at the local post, including mandatory viewings of The Invisible
War, created an appearance of UCI and prevented panel members from impartially
discharging their duties at his trial. The military judge denied appellant’s UCI
motion.

       Before assembling the court-martial, the military judge allowed liberal voir
dire of each prospective panel member. He also granted each of appellant’s causal
challenges, though none of them were based on UCI.

       The government's evidence included the following relevant facts. Chief
Warrant Officer Two TF testified that appellant sexually harassed her by sending her
text messages in which he called her “sexy,” asked her to date him and asked her to
meet him at a bed and breakfast. 4 Staff Sergeant CC testified that between 1 April
and 31 May 2009, appellant raped and forcibly sodomized her. She testified that she
met appellant at a bed and breakfast in Friedberg, Germany, where they dined and
then retired to separate bedrooms for the evening. Staff Sergeant CC testified that
she did not bring a “particular set of pajamas to sleep in.” Appellant entered her
room and offered her clothing that was too small for him and, after he left the room,


3
    The granted relief is also partially based on error not raised by the parties.
4
  Sergeant KH testified that appellant called her sexually suggestive names in an
email message. Sergeant CS testified that appellant called her “gorgeous” multiple
times. Staff Sergeant KK testified that appellant described to her his sexual activity
with his girlfriend and told SSG KK she was a “cutie” and calling her “sexy.”


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GARCIA—ARMY 20130660

SSG CC donned it as sleepwear. Appellant reentered SSG CC’s bedroom and,
according to her testimony, raped and forcibly sodomized her.

       Staff Sergeant CC testified that she initially did not report appellant’s
misconduct, because she wanted to maintain her privacy and did not want people to
“[see] the new girl as being a problem child.” She testified that she decided to
“pretend like it didn’t happen so that I would be able to deal with working with
him.” Staff Sergeant CC continued that, as a paralegal, she was familiar with Army
procedures for responding to allegations of sexual assault:

             [Y] ou have to report it to your [Sexual Assault Prevention
             and Response Program (SHARP) coordinator] who---you,
             you know, potentially, have to talk to your commander and
             then you go through the [Criminal Investigation Command
             (CID)] interview and then you have to hope that CID
             believes you, that JAG believes you. Whoever opines on
             the case, the command has to believe in what you have to
             say and then who knows how many other, you know, for my
             case, I had to talk [to] a[] [Special Victims’ Unit
             (SVU)[sic]] lawyer in Fort Lewis and then you talk to the
             victim witness liaison and then you have to tell somebody
             over the phone again and then you have the Article 32
             hearing and then, you know, if it ever makes it to court-
             martial then it is like you have to go with your lawyers and
             the defense lawyers and then this trial. And even as nice as
             everyone wants to be, you know that they are still looking
             at you as that girl who may or may not have been raped or
             the girl who cries wolf. Either way, you have this feeling
             that people are just being nice to you because you are a
             victim. And, you know, I take a lot of pride in being a
             paralegal and I like to think that we are some of the elite
             and I don’t---I don’t ever want to be seen as a victim. You
             know, it is hard enough being a woman in the Army and
             then to be seen as someone who is even more inferior than
             any other female. It is not the position I ever wanted to be
             in.

       When asked by government counsel why she accompanied appellant and
joined him for dinner on a trip to Heidelberg approximately three weeks later, SSG
CC testified that she “wanted to kind of feel like things were normal.”

      At the end of the government’s direct examination, SSG CC testified about
her departure from active Army service and additional catalysts for her reporting
appellant’s misconduct:



                                          3
GARCIA—ARMY 20130660

            [T]here were so many messages coming at me between--
            there is this radio commercial that we had about
            [Department of Defense (DOD)] support and family
            members and getting, you know, mental or medical help for
            sexual harassment or assault. And then we had The
            Invisible War movie come out so everyone was talking
            about that. And then they had even mentioned it in our
            [Army Career Alumni Program (ACAP)] briefings. And
            while I am not a terribly religious person, there are certain
            points in your life where you start hearing things and you
            kind of get that feeling, like, I feel like somebody is talking
            to me. And at that point in my career, you know, I was
            older, I was more seasoned as a [s]oldier and as a
            [noncommissioned officer (NCO)], you know, as a staff
            sergeant at that point. I had almost seven years in. And I
            felt, like, with my family and with my career, I was finally
            at a point where I could say this is what happened to me by
            another [s]oldier and I wasn’t really fearful of where my
            career stood. I was confident that I was closing this chapter
            with the Army and on a good note and that since I was
            getting out, you weren’t going to be able to take my job,
            you weren’t going to be able to take my credibility and my
            good name from me. You know, the chapter was closing
            and it was---it was secure at that point. And I was secure
            in being able to say this is what happened and not fear for
            any kind of repercussions or misunderstandings.

       On cross-examination, defense counsel asked SSG CC about, among other
things, photographs that she sent appellant.

            Q: Did you e-mail him pictures of yourself?

            A: Yes.

            Q: You did?

            A: There is one that I remember. Yes.

            Q: And tell us about that picture.

            A: It was a picture that I had taken post-deployment that I
            had mentioned I wanted it turned into a painting and he said
            he knew someone who could get that done. So, the picture




                                          4
GARCIA—ARMY 20130660

             was sent to him in the idea that the picture would be turned
             into a painting.

             Q: What kind of picture is that?

             A: It was a pin-up style picture.

             Q: Can you tell the panel a little bit more about that?

             A: I don’t know what picture it was and all I can say that
             it was a 40’s, 50’s retro type photograph, nothing nude.

             Q: Were you in lingerie in that picture?

             A: There was a number of pictures, ma’am. I don’t know.

      Defense counsel then provided multiple photographs to SSG CC, three of
which she identified as herself. One photograph depicts SSG CC, bare-shouldered
and wearing a necktie; the other two depict her wearing lingerie. 5 The military
judge granted the defense request to admit and publish the photographs to the panel.
On re-direct examination, SSG CC was given the opportunity to explain further:

             Q: When you sent Sergeant Garcia the pictures of yourself,
             you told the members that you were doing so because you
             knew he knew someone who could turn them into a
             painting?

             A: Yes, ma’am. That is what he had told me.

             Q: Describe what kind of painting you wanted those to be
             turned into?

             A: So, I had had pin-up portraits done. Throughout my
             time in California, I visited a lot of antique shops; you see
             a lot of pin-up posters. It was a style that I really like, so I
             wanted the portraits done. I had them done and I had
             mentioned that I wanted to get it turned into a painting that
             included a military style bomber that is classically known
             to have portraits of pin-up women on it. And I just thought
             it would be nice to have a painting of a bomber with the
             pin-up girl being myself versus just some stock image. And


5
  The photographs are sexually provocative; existing Army policy would prohibit
their display in the workplace.


                                            5
GARCIA—ARMY 20130660

            when I had mentioned this, he said that he knew someone
            who could paint and that was the reason that I sent him
            those photographs was in hopes of having a painting done.

       On cross-examination, SSG CC testified about the extent to which her status
as a sexual assault victim would affect future medical care:

            Q: And when you were out processing, you testified that
            you were made aware of certain benefits given to sex assault
            survivors, correct?

            A: Not the benefits, ma’am, just that the [U.S. Department
            of Veterans Affairs (VA)]---it was something that was put
            into your medical record that went in with your VA file.

            Q: And you said that you had---you were doing an ACAP
            in-brief?

            A: Yes, ma’am.

            Q: And you had heard during the ACAP in-brief that certain
            medical benefits were given to people that were survivors
            of sex assault, correct?

            A: Yes, ma’am.

            Q: And you heard that in your medical file if you were a
            victim of sex assault that went into your medical file to be
            forwarded to the VA later for possible claims?

            A: Yes, ma’am.

       Staff Sergeant CC also acknowledged on cross-examination telling appellant,
“I have your career in my hands. If you screw with me and at any moment, I could
end this.” On re-direct examination, government counsel asked SSG CC to provide
context for the remark:

            It was---you know, when he would come up to talk to me
            and I was done with the conversation, you know, and he still
            wanted to joke or whatever, it was sort of a---my trying to
            make it a lighthearted threat about what had happened to---
            I mean, it was just really the only way to ease the
            conversation of, like, I know what happened between us. I
            know what you did to me and if you don’t leave me alone,



                                         6
GARCIA—ARMY 20130660

             I will go tell someone. And this whole relationship between
             the two of us will be over. So, it had nothing to do with
             anything else other than trying to make light of such a
             terrible situation, you know, and just getting him to know,
             like, I remember what happened and I can go tell someone
             if you don’t leave me alone. And instantly, he would walk
             away from me if I ever said that to him.

      On re-direct examination, government counsel asked SSG CC, “[d]id you ever
make up this accusation because you wanted some potential benefit or gain from the
Veteran’s [sic] Administration?” Staff Sergeant CC responded:

             Not at all. That had nothing to do with my reporting. What
             I wanted was for what little bit that I could---I could say to
             anyone and not only my psychological records from visiting
             mental health in Fort Lewis but also the diagnosis that was
             given to me after this to be part of my medical record. It
             had nothing to do with---I wasn’t even---it is not getting
             paid for this. I mean there is no pay out that is worth this
             process whatsoever.

       Then, government counsel asked SSG CC, “[h]as this process been
particularly fun for you?” The military judge overruled defense counsel’s objection
to the question, and SSG CC answered:

             No, this process sucks. I mean, this is—you are putting
             yourself out on the line to have a number of people validate
             what happened to you and believe what you say. And you
             are opening your inside self to scrutiny and it is awful. And
             I had to not only go through this myself but I’ve had to tell
             my husband who had---who had no idea this had happened
             to me. I had to tell him what happened before we got
             married and hope that that did not destroy my marriage to
             him.

       Defense counsel called two witnesses during appellant’s case. One of them
was HG, appellant’s eleven year old son. HG testified that SSG CC joined him, his
brother and appellant on a castle visit and swimming excursion in Dorheim during
the summer of 2009. On cross-examination, SSG CC had acknowledged visiting a
castle with appellant the day after the incident in Friedberg, but she testified that no
children accompanied them, and she said she did not remember going swimming.

       After the military judge’s substantive findings instructions, counsel for both
parties made closing arguments. During the government’s findings argument, trial



                                           7
GARCIA—ARMY 20130660

counsel first addressed appellant’s conduct with respect to SSG CC, calling it “the
gravamen of these offenses.” Then, the government described appellant’s conduct
with respect to CW2 TF:

             [Chief Warrant Officer Two TF] also told you that
             [appellant] wanted to ask her out. When she declined, he
             continued to insist. And this is telling. Where did he want
             to take her? To a bed and breakfast.

             DC: Objection, Your Honor. I believe there is a spillover
             issue here and a 413.

             MJ: It has nothing to do with 413. I don’t see this as a
             spillover issue. Overruled.

             ATC: Thank you, Your Honor. To a bed and breakfast.
             You heard [CW2 TF] tell you that. She said she was
             insulted to think that a colleague would think that she was
             the type of woman who would just accept an invitation to
             stay at a bed and breakfast with someone she didn’t even
             know their [sic] identity. . . .

             And the defense wants you to think that this is not a crime
             but it is, because it is a problem. A problem that we all in
             this courtroom know about, a very big problem which we
             explored during voir dire that is at the forefront of what we
             are trying to battle against in the Army today.

     Defense counsel did not object to this last portion of the government’s
argument. In her closing, defense counsel said shortly before ending:

             So, why is the prosecution acting this way? Captain [MM]
             told you herself, the Army’s number one priority right now.
             Congress, the Department of Defense and their Commander
             in Chief have told them that the need to prosecute sexual
             assault cases. They have designated Captain [MM] as a
             special victim’s prosecutor. Her job is to prosecute and win
             sexual assault cases. Members, what is happening in this
             courtroom right now is not the way to accomplish that
             mission. You cannot take the man’s liberty based on weak
             evidence. You cannot twist words and facts and present
             untruthful witnesses to take a man’s liberty. The burden is
             much bigger than that. Don’t let them shy away from that.
             And also, you remember, we have no burden.



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GARCIA—ARMY 20130660

      On rebuttal, CPT MM responded on behalf of the government:

            Would members kindly remove the flyer from your folders,
            if you would, please? When you have it in front of you,
            when you look at the upper left-hand corner and where it
            says, United States versus---do you see Staff Sergeant [CC]
            or do you see Staff Sergeant Gabriel Garcia?

            Show of hands for Sergeant [CC].

            That is a negative response from the members.

            Show of hands for United States versus Staff Sergeant
            Gabriel Garcia.

            That is an affirmative response from all the members.

            That is right, because this is the United States versus Staff
            Sergeant Gabriel Garcia. And what just happened, the
            government would argue, is why the Army has a continuing
            issue with sexual assault in the military.

      At this point, defense counsel announced, “[o]bjection.” The military judge
responded:

            Sustained. Bring this [sic] up before. The argument that
            sexual assault or any particular crime is a problem in the
            forefront of the Army, that is improper argument, members.
            You can only consider the facts as they were presented here
            in court and my instructions on the law and Army
            regulations, the evidence that has been presented here in
            court. You can’t consider anyone else’s views on any
            offenses.

      During additional rebuttal argument, CPT MM said:

            Captain [AS] talked about zealous advocacy. Zealous
            advocacy can also go too far. . . . And the poor son, [HG],
            the defense’s decision to bring in that poor child here and
            have to be put in a position to try to help his dad . . . . No
            child should ever have to be put in that position. . . .

            Do you remember [SSG CC’s] testimony when she talked
            about this process and how she has a keen and unique



                                          9
GARCIA—ARMY 20130660

             insight into this process because she is a paralegal? She has
             seen this before. She has seen other people go through this
             process because she processes these types of actions. She
             said it is not just the initial report to a SHARP, it is then to
             your NCO, to law enforcement, to the special victim
             prosecutor, my colleague at Fort Lewis, Washington, to the
             CID agents there, to the CID agents here in Wiesbaden,
             Germany, to the unit victim advocate, to the victim witness
             liaison officer. She would have had to continue to lie to
             Lieutenant Colonel [B] in front of the Article 32
             investigation hearing. She would have had to lie to Captain
             [HK] and myself in pretrial preparations. Lie to this
             military tribunal. For what gain? When the prosecution
             asked [SSG CC], is this fun for you? Of course it is not
             fun. It is not fun to be sexually assaulted and then have to
             be victimized by the process again. Maybe that is why
             people don’t want to report sexual assault?

       Defense counsel again announced, “[o]bjection.” The military judge
sustained it. Defense counsel did not object further. After procedural instructions
from the military judge, the panel deliberated for approximately three and a half
hours before returning the findings.

                               LAW AND ANALYSIS

       This case involves numerous instances of improper argument during findings.
Some were objected to and some were not. We discuss each instance separately and
collectively assess whether they resulted in prejudice to appellant.

                         A. Impermissible Spillover Argument

       A soldier may only be convicted of a charge based on relevant evidence, and a
corollary follows: evidence that is relevant only to one particular charge may not be
used to convict on a charge to which it is irrelevant. Citing United States v. Hogan,
the Military Judge’s Benchbook offers instructional guidance and describes the
spillover risk as:

             When unrelated but similar offenses are tried at the same
             time, there is a possibility that the court members may use
             evidence relating to one offense to convict of another
             offense.    Another danger is that the members could
             conclude that the accused has a propensity to commit crime.
             Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’




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GARCIA—ARMY 20130660

             Benchbook [hereinafter Benchbook], para. 7-17 (10 Sept.
             2014)(citing Hogan, 20 M.J. 71 (C.M.A. 1985).

       In the government’s findings argument, trial counsel argued: “[a]nd this is
telling. Where did [appellant] want to take [CW2 TF]? To a bed and breakfast.”
Defense counsel objected on improper spillover and Military Rule of Evidence
[hereinafter Mil. R. Evid.] 413 grounds. The judge overruled the objection.

       The military judge erred in overruling the defense’s spillover objection.
Defense counsel was concerned that government counsel was attempting to link
appellant’s unwelcome overture to CW2 TF with the charges relating to SSG CC by
inviting the members to conclude that between CW2 TF and SSG CC, appellant had
established a pattern of inviting other soldiers to meet with him at a bed and
breakfast. Defense counsel’s concerns were valid. The evidence that appellant
invited CW2 TF to go to a bed and breakfast was intrinsic evidence of the sexual
harassment offense involving her. The evidence was extrinsic in relation to the rape
and forcible sodomy offenses involving SSG CC. If trial counsel wanted to use
evidence that appellant invited CW2 TF to a bed and breakfast as extrinsic evidence
to prove motive, intent, or modus operandi for the offenses involving SSG CC, trial
counsel was required to follow the notice provisions of Mil. R. Evid. 404(b) and the
military judge was required to make Mil. R. Evid. 404(b) findings. “The
Government may not introduce similarities between a charged offense and prior
conduct, whether charged or uncharged, to show modus operandi or propensity
without using a specific exception within the rules of evidence, such as Mil. R. Evid.
404 or 413.” United States v. Burton, 67 M.J. 150, 152 (C.A.A.F. 2009); see also
United States v. Guthrie, 53 M.J. 103 (C.A.A.F. 2000), United States v. Kerr, 51
M.J. 401 (C.A.A.F. 1999), and United States v. Barnes, 74 M.J. 692 (Army Ct. Crim.
App. 2015). 6 There is no evidence that this notice or analysis occurred in this trial.
The military judge should have sustained the objection and given a curative
instruction to the members regarding improper spillover to alleviate the danger that
the panel would improperly use the evidence elicited to prove the maltreatment
against CW2 TF to also prove the offenses against SSG CC.




6
 The military judge correctly decided that Mil. R. Evid. 413 was not implicated
because the evidence elicited from CW2 TF was not evidence of appellant’s
commission of another sexual assault as contemplated by that rule. Nonetheless,
because the analysis required before admitting evidence under Mil. R. Evid. 404(b)
and 413 are closely related, we conclude defense counsel’s objection properly
brought the issues of spillover and extrinsic evidence before the military judge See
United States v. Datz, 61 M.J. 37, 42 (C.A.A.F. 2005).


                                          11
GARCIA—ARMY 20130660

                     B. Constitutionally Impermissible Argument

       “No person shall be . . . deprived of life, liberty, or property, without due
process of law . . . .” U.S. Const. amend. V. We believe this fundamental
constitutional right, which soldiers maintain while in service to the nation, is
perhaps the singular bedrock for our system of justice. From it follows the
presumption of innocence, overcome only when one’s guilt is proven beyond a
reasonable doubt in accordance with the Constitution.

      “In all criminal prosecutions, the accused shall enjoy the right to . . . be
confronted with the witnesses against him [and] to have compulsory process for
obtaining witnesses in his favor . . . .” U.S. Const. amend. VI.

       It is fundamentally unjust to incriminate an appellant by improperly
commenting on his invocation of a constitutional right. We held in United States v.
Carr, “it is inappropriate that any party to a court-martial should be allowed to
profit, directly or indirectly, by argument on findings or sentence regarding an
exercise of a constitutionally protected criminal due process right.” Carr, 25 M.J.
637, 639 (A.C.M.R. 1987). “Whether there has been improper reference to an
accused’s invocation of his constitutional rights is a question of law that we review
de novo.” United States v. Moran, 65 M.J. 178 (C.A.A.F. 2007) (citing United States
v. Alameda, 57 M.J. 190, 198 (C.A.A.F. 2002)).

       During her rebuttal argument on findings, trial counsel made two improper
references to appellant’s exercise of his constitutional rights. First, trial counsel
argued with respect to appellant’s decision to call his eleven year old son, HG, as a
witness:

             Captain [AS] talked about zealous advocacy. Zealous
             advocacy can also go too far. . . . And the poor son, [HG],
             the defense’s decision to bring in that poor child here and
             have to be put in a position to try to help his dad . . . .No
             child should ever have to be put in that position.

Rather than focusing on HG’s credibility or his testimony’s relevance, government
counsel invited the panel to convict appellant because he called his son to testify on
his behalf as was his right to do under the Sixth Amendment. See generally United
States v. Boyer, NMCCA 201100523, 2012 CCA LEXIS 906, (N.M.C.C.A. 2012)
(error to argue to the panel to “protect the victim” rather than evaluate the
evidence); see also United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) and United
States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005).

      The second instance of improper argument occurred during government
counsel’s findings argument when she invited the panel to convict appellant because



                                           12
GARCIA—ARMY 20130660

of his exercise of his Sixth Amendment right to confront witnesses against him.
During redirect examination of SSG CC, government counsel was attempting to
rehabilitate her credibility after defense counsel challenged her motives for coming
forward with sexual assault allegations approximately three years after the fact. One
of the defense challenges was that SSG CC did not make her allegations until she
was advised that if she alleged a sexual assault in her file with the U.S. Department
of Veterans Affairs (VA), she would be eligible to file a claim and receive VA
benefits. Answering government counsel’s question, “[h]as this process been
particularly fun for you?” Staff Sergeant CC responded with the narrative
previously quoted.

       In light of our disposition of this case, we need not decide whether the
military judge erred in overruling the defense objection to government counsel’s
question. Under the “invited reply doctrine,” government counsel may properly
rebut defense counsel’s inference that SSG CC made her allegations of sexual
assault to obtain VA benefits. United States v. Gilley, 56 M.J. 113, 120-121
(C.A.A.F. 2001). The problem with the question in this case was its vagueness and
tendency to elicit any number of objectionable responses which would far exceed
what the “invited reply” doctrine allows. Id.

       We conclude government counsel overstepped the bounds of proper argument
when using SSG CC’s response to argue, “[i]t is not fun to be sexually assaulted and
then have to be victimized by the process again.” The government’s argument that
SSG CC had been “victimized by the process,” and its rhetorical question about the
reason for victims’ reluctance to report allegations of sexual assault tacitly
suggested that the panel believe SSG CC, lest they further victimize her, and invited
them to convict appellant because he had “revictimized” Staff Sergeant CC anew by
asserting his constitutional rights to demand a trial and confront her through cross-
examination. 7

                   C. Unlawful Command Influence in Argument

        At the appellate level, to prove there was unlawful command influence at
trial, appellant “must (1) show facts, which if true, constitute unlawful command
influence; (2) show that the proceedings were unfair; and (3) show that the unlawful
command influence was the cause of the unfairness.” United States v. Simpson, 58
M.J. 368, 374 (C.A.A.F. 2003) (quoting United States v. Biagase, 50 M.J. 143, 150


7
  The improper portion of sentencing argument in Carr was similar, where
government counsel argued on sentencing that the victim: “had to undergo the
constitutional right of the defendant to question and confront his witnesses –
granted, but [the alleged victim] nonetheless has had to undergo extensive direct
examination and over an hour of cross-examination yesterday facing serious
insinuations that she was lying. . . .” Carr, 25 M.J. at 638.


                                         13
GARCIA—ARMY 20130660

(C.A.A.F. 1999). Evaluating whether appellant has met this burden, we “must
consider apparent as well as actual unlawful command influence.” Id. at 374.

       We interpret portions of the government’s argument as citing Army policy
objectives, at least in part, as the basis for convicting appellant. In this regard, the
government’s findings argument created the appearance of unlawful command
influence for specifications related to SSG CC.

       We commend the extensive voir dire, which enabled the parties to understand
whether prospective members were aware of inarguably widespread efforts—
including remarks by the Commander-in-Chief—to increase awareness of and
prevent sexual assault in the armed forces. These were important preliminary
questions, leading to subsequent ones to assess whether such awareness
compromised prospective members’ ability to find facts based solely on the evidence
and law applicable to appellant’s trial. Much like the panel described in United
States v. Simpson, (holding, among other things, that the Army’s “‘zero tolerance’
[sexual harassment] policy was not improperly injected into the trial . . . .”), the
panel’s responses may be similarly described as “display[ing] a sophisticated
understanding that the policy was a matter of leadership, not law, which had no
relationship to their duties as court members.” Simpson, 55 M.J. 674, 686 (Army Ct.
Crim. App. 2001). Like Simpson, appellant’s court-martial exemplified “the tension
between ensuring a fair trial in a particular case and the need for command policies
to address the discipline and morale problems from which the court-martial stems.”
Id.

       After the parties and the military judge were apparently satisfied through voir
dire that the members would consider only the evidence in appellant’s case and
follow the military judge’s instructions on the law, the government violated those
fundamental constraints. Trial counsel departed from the example set by
government counsel in Simpson, who “scrupulously avoided any references to the
Army’s policy on sexual harassment during argument.” Id. Instead, trial counsel
plainly reminded the panel of systemic challenges associated with sexual assault (“a
very big problem which we explored during voir dire”) and the primacy of Army
efforts to address those challenges (“at the forefront of what we are trying to battle
against in the Army today.”)

      Efforts undertaken to address sexual assault occurrence, reporting and
prevention are subject to the “proper exercise of the command function. What is
improper is the reference to such policies before members which . . . brings the




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commander into the deliberation room.” Id. (quoting United States v. Grady, 15
M.J. 275, 276 (C.M.A. 1983). 8

       In light of the three factors in Simpson, we first conclude government
counsel’s multiple improper references to Army-wide efforts to respond to and
prevent sexual assault created the appearance of unlawful command influence. As
set forth below in our prejudice analysis, we conclude that the proceedings were
unfair and that the government’s persistent and improper references to Army policy
were a source of an unfair trial.

                                     D. Prejudice

       In cases of improper argument we assess whether prejudice exists by
examining and balancing three factors: (1) the severity of the misconduct, (2) the
measures adopted to cure the misconduct, and (3) the weight of the evidence
supporting the conviction. United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F.
2005); see also United States v. Frey, 73 M.J. 245, 249 (C.A.A.F. 2014).




8 In Grady, an Air Force case involving the illegal transfer and use of marijuana,
trial and defense counsel’s sentencing arguments referred to a Strategic Air
Command (SAC) policy which took a tough stance on illegal drugs. When a member
of the panel asked to review the policy, the military judge replied:

             [R]egardless of what SAC policy is, or any other policy is,
             it is your independent determination of what is an
             appropriate sentence in this case which should determine
             what sentence you vote for or impose.

      Observing the military judge’s intervention did not remedy the error, our
superior court’s predecessor wrote:

             [T]he repeated references to SAC command policy as to the
             disposition of drug offenders was prejudicial error, and the
             military judge’s failure to interrupt at first mention and give
             appropriate limiting instructions exacerbated the error. . . .
             It is the spectre of command influence which permeates
             such a practice and creates “the appearance of improperly
             influencing the court-martial proceedings” which “must be
             condemned.”

Grady, 15 M.J. at 276, quoting United States v. Hawthorne, 7 U.S.C.M.A.
293, 297, 22 C.M.R. 83, 87 (1956).  


                                           15
GARCIA—ARMY 20130660

       Considering the first Fletcher factor, the severity of misconduct here was
significant. First, the government impermissibly argued “spillover” evidence.
Second, the government repeatedly derogated appellant’s constitutional rights to
demand a trial, confront witnesses called against him, and present witnesses in his
defense when insinuating appellant should not have called his son as a witness and
that SSG CC is being “revictimized by the process.” Third, with multiple
references—some overt and others thinly veiled—to the Army’s efforts to confront
sexual assault, the government attempted to impermissibly influence the panel’s
findings by injecting command policy into the trial.

       Regarding the second Fletcher factor, and under the circumstances of this
case, the military judge’s actions were insufficient to cure the government’s
arguments regarding improper spillover, appellant’s son as a witness, and the
revictimization of SSG CC by the process. We recognize the military judge’s efforts
to keep government counsel within the bounds of proper argument when she
integrated the Army’s problem with sexual assault into her argument. In response to
defense objection, he curatively instructed the panel that the government’s argument
that “sexual assault or any particular crime is a problem in the forefront of the
Army” was improper. However, government counsel persisted in rebuttal when,
immediately after characterizing SSG CC as “victimized by the process again,” she
asked the rhetorical question, “[m]aybe that is why people don’t want to report
sexual assault?” The military judge immediately sustained defense counsel’s
objection to this argument, but without a curative or limiting instruction. We
conclude the military judge’s intervention did not remove the threads of
impermissible matters woven into the government’s findings argument.

        Evaluating the third Fletcher factor, we find the weight of the evidence
supporting the convictions involving SSG CC was weak. Staff Sergeant CC
accepted appellant’s offer of his clothes to wear as pajamas during the night in
question, but she was unable to explain what prompted appellant to offer them.
Staff Sergeant CC did not report her allegations until multiple years after the
incident in Friedberg. Though SSG CC testified that she tried to maintain a
minimal, normal working relationship with appellant after the incident, she agreed to
travel alone and meet him shortly afterward in Heidelberg, shopping and dining with
him. Staff Sergeant CC also provided appellant with multiple photographs of
herself, scantily clad, testifying that she sent him these photographs so that he might
have them reduced to and returned to her as a pin-up style painting. She also
testified that she could not remember whether she sent him the photographs before
or after the Friedberg trip, though the trip occurred shortly after her moving to
Germany and meeting appellant for the first time.

      We conclude that appellant was prejudiced because the panel may have been
swayed by the constitutionally impermissible derogations contained in government
counsel’s arguments and the government counsel’s attempts to bring unlawful



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command influence to bear on the findings. The errors in this case are confined to
the charges alleging appellant’s criminal acts involving SSG CC; with respect to the
findings thereon and the sentence—the result is unreliable.

                                  CONCLUSION

       The findings of guilty to Specifications 1 and 2 of Charge III and Charge III
are set aside. The findings of guilt to The Specification of Charge IV and Charge IV
are set aside. The remaining findings of guilty are AFFIRMED. The sentence is set
aside. A rehearing may be ordered by the same or a different convening authority.
See generally R.C.M. 810. All rights, privileges, and property, of which appellant
has been deprived by virtue of the findings and sentence set aside by this decision
are ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Senior Judge LIND and Judge KRAUSS concur.


                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




                                        MALCOLMH.
                                       MALCOLM       H.SQUIRES,
                                                        SQUIRES,JR.
                                                                 JR.
                                        ClerkofofCourt
                                       Clerk      Court




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