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

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

                      UNITED STATES OF AMERICA

                                     v.

                         LUIJI R. PIERRE
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201300257
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 6 February 2013.
Military Judge: CAPT Jeremiah Sullivan III, JAGC, USN.
Convening Authority: Commanding General, Training Command,
Quantico, VA.
Staff Judge Advocate's Recommendation: LtCol M.E. Sayegh,
USMC.
For Appellant: LT Carrie E. Theis, JAGC, USN.
For Appellee: Maj Crista D. Kraics, USMC.

                          23 September 2014

     ---------------------------------------------------
                     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 military judge sitting as a general court-martial
convicted the appellant, contrary to his pleas, of two
specifications of aggravated sexual assault, and one
specification of abusive sexual contact, in violation of Article
120, UCMJ, 10 U.S.C. § 920. The military judge sentenced the
appellant to eight years of confinement, forfeiture of all pay
and allowances, reduction to pay grade E-1, and a dishonorable
discharge. The convening authority (CA) approved the sentence
as adjudged.

     The appellant raises five assignments of error: First, that
the military judge abused his discretion when he determined that
a Criminal Investigative Division (CID) Special Agent (SA) was
unavailable to appear in person to testify at trial; Second,
that his sentence is unjustifiably severe; Third, that the
military judge erred in calculating the maximum punishment for
Charge I, Specification 2; Fourth, that his convictions are
factually and legally insufficient; and lastly, that his
Officer-in-Charge (OIC) unlawfully influenced all of the
witnesses to Charge I, Specification 2 when he characterized the
allegation against the appellant as a “sexual assault”
immediately after the event was reported.

     After carefully considering the record of trial and the
submissions of the parties, we conclude that the findings and
the sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     The factual basis for the charges in this case arose from
three different incidents with three different women.

     In June 2011, the appellant showed up drunk at a hotel room
being rented by LCpl H and her boyfriend, LCpl C, asking if he
could sleep in their room. LCpl H, who had answered the door
while Lance Corporal (LCpl) C slept, told the appellant that he
could sleep on the floor. The next morning, LCpl H awoke to the
appellant penetrating her vagina with his fingers. LCpl H did
not tell her boyfriend what happened out of concern that he
would want to “fight” the appellant.1 The next day, LCpl H
confronted the appellant, who then apologized. LCpl H
eventually forgave the appellant, continued her relationship
with him, and for months did not tell anyone what happened
because she did not want him to get into trouble. LCpl H
changed her mind and reported the incident when she learned of
allegations that the appellant had also sexually assaulted LCpl
M.2

1
    Record at 337.
2
  The appellant was acquitted of the sexual misconduct offenses involving LCpl
M.
                                      2
     On 28 January 2012, LCpl D invited the appellant over to
watch a movie in LCpl D’s barracks room. That evening, the
appellant and LCpl D fell asleep while watching the movie. At
around 0900, LCpl D awoke to find her sweatpants pulled down and
the appellant performing oral sex on her. She then testified
that she pushed the appellant away and told him to get out of
her room. Although LCpl D did not immediately report the
incident, the next day she told her Platoon Sergeant what
happened. The report then went up through LCpl D’s chain-of-
command. That evening, LCpl D went to the hospital and
underwent a sexual assault examination.

     In July 2012, the appellant attended another off base hotel
room party. Included in this group was LCpl M2, who was at the
party with her boyfriend LCpl M3. The appellant and LCpl M2
were acquaintances from MOS school. After several hours of
everyone drinking, LCpl M2 laid down fully clothed with LCpl M3.
The appellant lay down next to them on the same bed. Sometime
later, LCpl M3 got up went outside to make a call. Upon his
return, he saw the appellant on top of LCpl M2 with his hands
between her legs, trying to lift the top of her dress. LCpl M3
grabbed the appellant and attempted to drag him out of the room.
It was at this point that LCpl M2 woke up confused and asked
what was going on. Eventually, LCpl M2 reported the incident to
her chain of command and went to the hospital for a sexual
assault examination.

     When the appellant’s OIC learned of the incident, he had
his unit conduct their own investigative inquiry, which he
started by addressing his Marines about a “sexual assault” that
occurred the night before.3

     Additional facts necessary to resolve the assignments of
error are included below.

                     Witness Unavailability Determination

     In his first assignment of error, the appellant claims that
the military judge abused his discretion when he determined that
CID SA Nixon was unavailable to appear in person at trial. The
following facts are relevant to this assignment of error.

     SA Nixon, who took the appellant’s statement in this case,
was severely injured in a parachuting accident following the


3
    Record at 744.
                                      3
investigation.4 His injuries included multiple fractures to his
spine and feet. Due to the extent of his injuries, and the fact
he was in a lot of pain, trial counsel moved to have the
military judge make an availability determination and allow SA
Nixon to testify via video teleconferencing (VTC). After
considering evidence from SA Nixon’s treating physician that he
was medically able to travel provided that he did so with a
companion, and had the space and mobility one is afforded when
flying First Class, the military judge denied the request and
ordered the Government to either: (1) fly counsel out to Ft.
Bragg, North Carolina to depose SA Nixon; or, (2) fly SA Nixon
and a family member First Class to the trial venue in Arizona.

     Approximately half-way into the Government’s case, trial
counsel proffered that: (1) SA Nixon expressed an “unwillingness
to come,” and (2) that when SA Nixon’s command learned of his
pending travel, his battalion commander independently determined
that SA Nixon was not medically able to travel and refused to
let him fly to the trial. In fact, when SA Nixon’s battalion
commander learned of his travel plans, his command “even
attempted to contact the doctor to see if she would change her
opinion”5 to say that SA Nixon was not medically fit to travel,
even with First Class accommodations. After hearing trial
counsel’s proffer and reviewing email traffic about SA Nixon’s
travel,6 the military judge revised his ruling and ordered that a
deposition be taken. The appellant’s defense team, who did not
want to take a deposition, then withdrew its original objection
to having SA Nixon testify via VTC. Thereafter, SA Nixon
provided testimony from Ft. Bragg, via VTC, regarding his
interview of the appellant after the incident with LCpl D.

     A military judge’s determination of witness unavailability,
and whether the Government made a good faith effort to make the
witness available, is reviewed for an abuse of discretion.7
“Findings of fact are affirmed unless they are clearly
erroneous; conclusions of law are reviewed de novo.”8 “If an



4
    SA Nixon is a Warrant Officer 3 in the United States Army.
5
    Record at 769.
6
    AE XXV.
7
    United States v. Vanderwier, 25 M.J. 263, 266 (C.M.A. 1987).
8
    United States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007) (citations omitted).


                                        4
abuse of discretion is found, the case will be reversed unless
the error is harmless beyond a reasonable doubt.”9

     When determining witness availability, a military judge
should consider several factors, including “the importance of
the testimony, the amount of delay necessary to obtain the in-
court testimony, the trustworthiness of the alternative to live
testimony, the nature and extent of earlier cross-examination,
the prompt administration of justice, and any special
circumstances militating for or against delay.”10 Where a
witness’s absence is due to illness, a court should also
consider the nature of the illness and its probable duration.11

     Applying those factors to the case at bar, we find that the
military judge did not abuse his discretion: (1) SA Nixon was
primarily a foundational witness for his videotaped interview of
the appellant; (2) the interview was never offered or admitted
into evidence; (3) a mutually agreed upon transcript of the
interview was admitted without defense objection; (4) the
appellant ultimately withdrew his objection to using VTC; (5)
this was a military judge alone trial; and, (6) there is no
dispute as to the reliability or trustworthiness of SA Nixon’s
statements via VTC.

     Further, assuming arguendo that it was an abuse of
discretion to find that SA Nixon was unavailable; we find that,
for the reasons set forth above, any such error would have been
harmless beyond a reasonable doubt.

                               Sentence Severity

     “Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves.”12 This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the




9
  United States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006) (citing United
States v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005)) (additional citations
omitted).
10
     United States v. Cokeley, 22 M.J. 225, 229 (C.M.A. 1986).
11
     United States v. Cabrera-Frattini, 65 M.J. 241, 245-46 (citation omitted).
12
     United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).


                                         5
nature and seriousness of the offense and character of the
offender.’”13

     In this case the appellant was found guilty of sexually
assaulting three fellow Marines over a 13-month-period. After
establishing friendship and trust with his fellow Marines, he
would sexually assault them while they were sleeping. Even
after considering the appellant’s “tough upbringing” and victim
preferences for a lighter sentence, we are convinced that the
sentence awarded was appropriate. Granting the appellant the
requested relief would amount to an act of clemency which is
left to the “command prerogative” of the CA. Accordingly, we
decline to grant relief.

             Improper Calculation of Maximum Punishment

     In his third AOE, the appellant argues that the military
judge erred when he calculated the maximum punishment for his
abusive sexual contact conviction under Article 120, UCMJ.14 The
military judge calculated the maximum punishment for this
offense to include confinement for thirty years and a
dishonorable discharge. The appellant argues that because the
President had not defined the maximum punishments under Article
120, UMCJ, at the time he committed his criminal misconduct, the
maximum punishment that the appellant could receive was limited
to the jurisdictional maximum of a summary court-martial. For
the reasons set forth in our opinion in United States v. Booker,
72 M.J. 787, 807 (N.M.Ct.Crim.App. 2013), we disagree and find
this assignment of error without merit.15

                     Legal and Factual Sufficiency

     The appellant’s fourth assignment of error claims that the
guilty findings are legally and factually insufficient. The
appellant does not allege there was insufficient evidence for
any one element of any of these offenses, but rather argues that
the primary evidence against him, the testimony of the victims

13
  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)).
14
  Charge I, Specification 2. At the time of trial, the President had not yet
established the maximum punishments for Article 120 offenses that occurred
after June 28, 2012.
15
  While the appellant acknowledges that we rejected his argument in Booker,
72 M.J. at 807, he raises this AOE “to preserve the issue.” Appellant’s
Brief of 13 Nov 2013 at 18.


                                      6
and other witnesses who testified at trial, “had significant
credibility problems.”16 The appellant cites a number of issues
in the respective testimonies of all three victims before,
during, or after the alleged incidents that challenge the
credibility of the evidence to a degree where the overall
evidence is insufficient to sustain his convictions.

     The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government, any
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt.17 The test for factual
sufficiency is whether, after weighing all the evidence in the
record of trial and recognizing that we did not see or hear the
witnesses, this court is convinced of the appellant's guilt
beyond a reasonable doubt.18 Proof beyond a reasonable doubt
does not mean that the evidence must be free of conflict.19 The
fact finders may believe one part of a witness’ testimony and
disbelieve another.20 When weighing the credibility of a
witness, this court, like a fact-finder at trial, examines
whether discrepancies in witness testimony resulted from an
innocent mistake, such as a lapse of memory, or a deliberate
lie.21

     Although there were variations in the testimony offered by
the Government’s witnesses, the differences were not so great as
to seriously call any witness’ credibility into question.
Moreover, the fact that the appellant’s version of events
differs significantly from those of the victims is not
sufficient, in and of itself, to render his convictions
factually or legally insufficient. As noted above, fact finders
are free to believe all or part of one witnesses testimony,
while disbelieve the testimony of other witnesses. After
carefully reviewing the entire record, and taking into
consideration the fact that we did not see and hear the

16
     Id. at 20-21.   ]
17
  United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987); United States v.
Reed, 51 M.J. 559, 561-62 (N.M.Crim.Ct.App. 1999), aff'd, 54 M.J. 37
(C.A.A.F. 2000); see also Art. 66(c), UCMJ.
18
     Turner, 25 M.J. at 325; see also Art. 66(c), UCMJ.
19
     United States. v. Goode, 54 M.J. 836, 841 (N.M.Ct.Crim.App 2001).
20
     Id.
21
     Id. at 844.


                                         7
witnesses personally, we find the witnesses’ testimony more
credible than that of the appellant, and therefore find the
evidence sufficient to establish the appellant’s guilt beyond a
reasonable doubt. Accordingly, we find his convictions both
factually and legally sufficient.

                          Unlawful Command Influence

     In his final assignment of error, the appellant claims for
the first time on appeal that unlawful command influence (UCI)
“influenced all witnesses in the case, to include the victim.”22
We disagree.

     UCI has often been referred to as “‘the mortal enemy of
military justice.’”23 Even the appearance of UCI has the
potential to be “‘as devastating to the military justice system
as the actual manipulation of any given trial.’”24 Apparent UCI
occurs when “a reasonable member of the public, if aware of all
the facts, would have a loss of confidence in the military
justice system and believe it to be unfair.”25 Allegations of
unlawful command influence are reviewed de novo.26

     For appellate consideration of UCI claims, the appellant
bears the burden on appeal to “(1) show facts which, if true,
constitute [UCI]; (2) show that the proceedings were unfair; and
(3) show that [UCI] was the cause of the unfairness.”27 When
analyzing UCI on appeal, we view the alleged UCI retrospectively
in terms of evaluating the actual impact it had on the completed
trial.



22
     Appellant’s Brief at 12.
23
  United States v. Gore, 60 M.J. 178, 178 (C.A.A.F. 2004) (quoting United
States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986)).
24
  United States v. Ayers, 54 M.J. 85, 94-95 (C.A.A.F. 2000) (quoting United
States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991)).
25
  United States v. Allen, 31 M.J. 572, 590 (N.M.C.M.R. 1990) (citing United
States v. Rosser, 6 M.J. 267 (C.M.A. 1979)) (additional citation omitted).
26
  United States v. Harvey, 64 M.J. 13, 19 (C.A.A.F. 2006); United States v.
Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999); United States v. Wallace, 39 M.J.
284, 286 (C.M.A. 1994).
27
  United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999) (citations
omitted).


                                      8
     Here, we find that no evidence that the OIC’s statements
adversely impacted the fairness of his trial. There is no
indication in the record of any witness testimony being
influenced or changed by the OIC describing what happened as
sexual assault, nor is there any evidence that any of the
witnesses felt pressure to testify in any specific way as a
result.28 Accordingly, we find this assignment of error without
merit.

                                Conclusion

     Accordingly, the findings and the sentence, as approved by
the CA, are affirmed.

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




28
  See United States v. Thomas, 22 M.J. 388, 397 (C.M.A. 1986) (finding no UCI
with regard to witnesses if “everyone who had relevant information testified
at trial and that none of these witnesses felt under any pressure to testify
in a certain way”).
                                      9
