UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           CAMPANELLA, PENLAND, and WEIS 1
                               Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Sergeant LUAVASA F. TAUALA, JR.
                            United States Army, Appellant

                                     ARMY 20140658

                         Headquarters, 7th Infantry Division
                     David L. Conn, Military Judge (arraignment)
                  Andrew J. Glass, Military Judge (pretrial motions)
                       Jeffery D. Lippert, Military Judge (trial)
         Lieutenant Colonel Michael S. Devine, Staff Judge Advocate (pretrial)
              Colonel Robert F. Resnick, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
Inkenbrandt, JA; Captain Amanda R. McNeil, JA (on brief); Colonel Mary J.
Bradley, JA; Major Christopher D. Coleman, JA; Captain Amanda R. McNeil
Williams, JA (reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Christopher A. Clausen, JA (on brief).

                                      17 August 2016

                                -----------------------------------
                                  OPINION OF THE COURT
                                -----------------------------------

PENLAND, Judge:

       A panel of officer members sitting as a general court-martial convicted
appellant, contrary to his pleas, of assault consummated by a battery, aggravated
assault with a force likely to produce death or grievous bodily harm, 2 perjury, and

1
    Judge WEIS took final action in this case while on active duty.
2
  Appellant pleaded guilty to the lesser-included offense of assault consummated by
a battery, in violation of Article 128, UCMJ, and failure to obey a lawful order in
violation of Article 92, UCMJ. The panel found him guilty of the greater offense, as
charged, of aggravated assault.
TAUALA — ARMY 20140658

child endangerment in violation of Articles 128, 131, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 928, 931, and 934 (2012) [hereinafter UCMJ]. The
panel sentenced appellant to a bad-conduct discharge, confinement for six months,
forfeiture of $765.75 per month for six months, and a reduction to the grade of E-1.
The convening authority approved the sentence as adjudged.

       We review this case under Article 66, UCMJ. Appellant raises one
assignment of error meriting discussion and relief. We also discuss and grant relief
based on an instructional error not raised by the parties, and we discuss but grant no
relief based on illegal pretrial punishment. Finally, we discuss but grant no relief
based on a matter personally raised by appellant under United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).

                                  BACKGROUND

                                      A. Perjury

       On 29 June 2013, appellant assaulted his wife. He was charged with, inter
alia, aggravated assault upon AT “by striking her head with a force likely to produce
death or grievous bodily harm, to wit: striking her head against a metal oven door.”
Appellant was also charged with perjury, based on his submission of a false
declaration in a state court proceeding related to this abuse. The government alleged
the following under Article 131(2), UCMJ:

             In that [appellant], U.S. Army, did, at or near Tacoma,
             Washington, on or about 10 July 2013, in a judicial
             proceeding, and in a declaration under penalty of perjury
             pursuant to section 1746 of title 28, United States Code,
             willfully and corruptly subscribe a false statement
             material to the matter of inquiry, to wit: “In this process
             she bumped her head, resulting in a bruise[],” which
             statement was false in that Mrs. [AT]'s facial injuries
             resulted from the [appellant] striking her in the head
             against an oven, and which statement he did not then
             believe to be true.

       At trial, defense counsel moved to dismiss the perjury charge and
specification under Rule for Court-Martial [hereinafter R.C.M.] 917, asserting the
government had offered no evidence to establish that appellant's declaration had
been made under 28 U.S.C. § 1746. Before denying the motion, the military judge
had the following exchange with defense counsel:




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TAUALA — ARMY 20140658

             MJ: I will suggest the first thing first. This is not a
             lawful general order regulation in which you need to
             establish its existence. The actual title in code is stated in
             the offense. It’s there. It is taken as a fact that it is in
             existence. The government does not have to prove to
             anybody that 28 U.S.C. 1746 exists.

             ADC: Your Honor, I apologize. What I was saying that
             the statement was made in accordance with that particular
             United States Code section.

             MJ: They don’t have to prove that either. Again, it’s a
             matter of law. That’s not something you have to prove. I
             either find that it is or isn’t. Or, it doesn’t even have to
             be found. Once it’s charged that way, you take a look at
             the statement and if it’s a sworn statement or it’s a
             declaration in accordance with that, it fits. You don't have
             to prove that.

             [. . . .]

             MJ: I understand you’re reading the words under penalty
             of perjury as permitted under Section 1746 of Title 28 to
             be conjunctive with declaration, certificate, and
             verification. I’m not.

                         B. Instruction For Aggravated Assault

       After the presentation of evidence on the merits of the case, the military judge
gave the following instruction regarding the meaning of “likely” in an aggravated
assault:

             The likelihood of death or grievous bodily harm is
             determined by measuring two factors. Those two factors
             are first, the risk of the harm, and two, the magnitude of
             the harm. In evaluating the risk of the harm, the risk of
             death or grievous bodily harm must be more than merely a
             fanciful, speculative, or remote possibility. In evaluating
             the magnitude of the harm, the consequence of death or
             grievous bodily harm must be at least probable and not
             just possible, or in other words, death or grievous bodily
             harm would be a natural and probable consequence of the
             accused's acts.


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TAUALA — ARMY 20140658

                            C. Illegal Pretrial Punishment

       Before trial, appellant sought relief for illegal pretrial punishment, based on a
2 December 2013 encounter with Colonel (COL) LZ, his brigade combat team
commander and the special court-martial convening authority in this case. In the
motion hearing, appellant testified that COL LZ visited his company area toward the
end of the morning's physical training. Appellant testified that he informed COL LZ
he was awaiting court-martial for domestic violence, to which COL LZ responded,
“So you like to beat on women?” Sergeant First Class (SFC) TM, an objective and
disinterested witness, testified and confirmed appellant's account of the
conversation. Colonel LZ also testified and denied making such a remark, saying,
“Oh, never, ever would I say that.”

       Ruling on the motion, the military judge found that COL LZ actually made the
remark and characterized it as “injudicious and not in keeping with the aspirational
goal, Army goal, of treating all persons . . . with dignity and respect.” The military
judge continued:

             However, notwithstanding the above findings, I do not
             find that [COL LZ]'s statement was made with the intent
             to punish the accused, nor was it made with the intent to
             place any particular stigma or stigmatize him in any way.
             I find that [COL LZ]’s statement was an off-hand
             statement made in the moment of recognition of who the
             accused was, and of the fact that the accused had been
             charged with an assault on his own wife. I find that, at
             worst, [COL LZ]’s reactive statement was an awkward
             attempt to diffuse [sic] an awkward situation. I find
             credible [SFC TM]’s testimony that he believed [COL LZ]
             could have been joking, although I find that such a joke
             was inappropriate under the circumstances as stated above.

             I must reiterate that this statement by [COL LZ] to the
             accused was not made in a public forum, such as a
             formation or a gathering of the public or other Soldiers in
             which more than one person, that is the accused, could
             have heard it. Accordingly, I find that there was no
             attempt to stigmatize the accused or to punish.

             I conclude, therefore, that because [COL LZ]’s statement
             was not intended to punish the accused or to stigmatize
             him, it did not violate the strictures of Article 13. . . .



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TAUALA — ARMY 20140658

                               D. Post-trial Processing

       After announcement of findings and sentence, defense counsel submitted
matters on 29 December 2014. The authenticated record of trial and the staff judge
advocate's recommendation were delivered to appellant's confinement facility on 5
January 2015; the convening authority took action the same day without receiving
additional matters from appellant.

                              LAW AND DISCUSSION

                           A. Perjury under Article 131(2)

    The Specification of Charge III alleges perjury in violation of Article 131(2),
UCMJ. This Article in pertinent part contains the following:

             [Any person subject to this chapter who in a judicial
             proceeding or in a course of justice willfully and
             corruptly] in any declaration, certificate, verification, or
             statement under penalty of perjury as permitted under
             section 1746 of title 28, United States Code, subscribes
             any false statement material to the issue or matter of
             inquiry [is guilty of perjury and shall be punished as a
             court-martial may direct.]

28 U.S.C. § 1746 contains the following:

             Whenever, under any law of the United States or under
             any rule, regulation, order, or requirement made pursuant
             to law, any matter is required or permitted to be
             supported, evidenced, established, or proved by the sworn
             declaration, verification, certificate, statement, oath, or
             affidavit, in writing of the person making the same (other
             than a deposition, or an oath of office, or an oath required
             to be taken before a specified official other than a notary
             public), such matter may, with like force and effect, be
             supported, evidenced, established, or proved by the
             unsworn declaration, certificate, verification, or statement,
             in writing of such person which is subscribed by him, as
             true under penalty of perjury, and dated, in substantially
             the following form. . . .

      Appellant now argues his perjury conviction is legally insufficient, a question
we review de novo. This is a case of first impression, for neither party cites, nor can
we find, a military case interpreting the application of Article 131(2). Turning to

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TAUALA — ARMY 20140658

the text of Article 131(2), we first conclude the law’s phrase “as permitted by
section 1746 of title 28, United States Code” modifies not just “statement.” The
phrase also modifies the previous words, “declaration, certificate, verification.” In
our view, this is the code's plain meaning, particularly when we compare it to
section 1746’s text, “declaration, certificate, verification, or statement. . . .”

      We also find persuasive appellate defense counsel's argument regarding the
scope of 28 U.S.C. § 1746: the statute describes and permits a method for bringing
information to a federal court. See In re Squire, 2012 U.S. Dist. LEXIS 38777 (S.D.
Ohio 2012); Toledo Bar Association v. Neller, 809 N.E.2d 1152, 1153 (Ohio 2004).

       Considering the federal scope of 28 U.S.C. § 1746, we hold Article 131(2)’s
punitive reach is similarly limited to falsely subscribed matters submitted in a
federal proceeding.

                                B. Instructional Error

      The instructions regarding aggravated assault were incorrect, because the
panel was informed “the risk of death or grievous bodily harm must be more than
merely a fanciful, speculative, or remote possibility.” Our superior court has held
such a definition of risk is erroneous. United States v. Gutierrez, 74 M.J. 61, 66
(C.A.A.F. 2015) (“The ultimate standard, however, remains whether--in plain
English--the charged conduct was ‘likely’ to bring about grievous bodily harm.”).
The question of whether appellant's misconduct was “likely” to grievously injure AT
was central to the parties' dispute regarding the allegation of aggravated assault.

       A military judge’s “[f]ailure to provide correct and complete instructions to
the panel before deliberations begin may amount to a denial of due process.” United
States v. Killion, 75 M.J. 209, 213 (C.A.A.F. 2016) (quoting United States v.
Wolford, 62 M.J. 418, 419 (C.A.A.F. 2006)). Here, we find the instructional error
amounted to a denial of due process, because it incorrectly described an element of
aggravated assault and undercut the defense's presentation of evidence and argument
regarding the likelihood of death or grievous bodily harm. Therefore, we must
assess whether this constitutional error was harmless beyond a reasonable doubt.
Wolford, 62 M.J. at 420 (citing United States v. Kreutzer, 61 M.J. 293, 298
(C.A.A.F. 2005)). We conclude the error resulted in prejudice, for we cannot be
confident under the facts and circumstances that the error did not contribute to the
panel's finding appellant guilty of Specification 2 of Charge I.

                           C. Illegal Pretrial Punishment.

        Article 13, UCMJ, provides, in pertinent part: “No person while being held
for trial, may be subjected to punishment or penalty other than arrest or confinement
upon the charges pending against him. . . .” This prohibition is not limited to

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TAUALA — ARMY 20140658

unlawful punishment levied against an accused in pretrial confinement; it extends to
degrading comments made toward or about an accused. United States v. Cruz, 25
M.J. 326, 330 (C.M.A. 1987).

       In Howell v. United States, __ M.J.__, 2016 CAAF LEXIS 592 (19 July 2016),
our superior court restated the necessary inquiry for evaluating whether government
action amounts to illegal pretrial punishment:

             [T]he question of whether particular conditions amount to
             punishment before trial is a matter of intent, which is
             determined by examining the purposes served by the
             restriction or condition, and whether such purposes are
             “reasonably related to a legitimate governmental
             objective.”

             [I]n the absence of a showing of intent to punish, a court
             must look to see if a particular restriction or condition,
             which may on its face appear to be punishment, is instead
             but an incident of a legitimate nonpunitive governmental
             objective.

Id. at *18 (citing United States v. Palmiter, 20 M.J. 90, 95 (C.M.A. 1985); quoting
Bell v. Wolfish, 441 U.S. 520, 539 (1979)) (alteration in original).

       Following our superior court's reasoning in Howell, we consider whether COL
LZ intended to punish appellant with his remark and, if not, whether he made it in
furtherance of a legitimate nonpunitive government objective.

       Assuming, without deciding, that COL LZ did not intend to punish appellant
and, instead, intended the remark as a nonpunitive joke, we find as a matter of law
that there was no legitimate government objective served in making it. Indeed, we
are unfamiliar with any principle of law to support the military judge's tacit
conclusion that such awkward remarks or jokes tend to be nonpunitive. The military
judge abused his discretion in ruling appellant was not illegally punished. 3

       In United States v. Zarbatany, 70 M.J. 169, 177 (C.A.A.F. 2011), our superior
court held “that meaningful relief for violations of Article 13, UCMJ, is required,
provided such relief is not disproportionate in the context of the case, including the
harm an appellant may have suffered and the seriousness of the offenses of which he

3
 The military judge's findings of fact were also clearly erroneous in part, for he said
COL LZ's remark “was not made in a public forum, such as a formation or a
gathering of the public or other [s]oldiers in which more than one person, that is the
accused, could have heard it.” Sergeant First Class TM heard the remark.
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TAUALA — ARMY 20140658

was convicted.” Aside from brief testimony during the motion session that appellant
was angered and upset by COL LZ's comment, we can identify no additional
resultant harm. We also consider appellant's offenses to be very serious ones.
Under the facts and circumstances, any relief based on the illegal pretrial
punishment in this case would be disproportionate and effectively grant a windfall to
appellant. We reach this conclusion “independent of [our] appropriateness review.”
Id.

                               D. Post-trial Processing

       Defense counsel submitted clemency matters on appellant's behalf on 29
December 2014. The authenticated record of trial and staff judge advocate's
recommendation were delivered to appellant’s place of confinement on 5 January
2015, and appellant received them on or a few days after that day. The clemency
matters included, inter alia, an unsigned letter from appellant to the convening
authority and appellant's 9 December 2014 request for an administrative separation
in lieu of court-martial. The submissions included no reservation of the right to
submit additional matters. Appellant does not allege his counsel was ineffective,
nor does he allege his counsel failed to obtain his permission before submitting these
matters to the convening authority.

      On 5 January 2015, the staff judge advocate also signed an addendum
responding to the clemency matters. The convening authority approved the sentence
the same day.

     Appellant now personally asserts he was deprived of the opportunity to
meaningfully participate in the post-trial clemency process. We disagree.

        R.C.M. 1105(a) provides: “After a sentence is adjudged in any court-martial,
the accused may submit matters to the convening authority in accordance with this
rule.” R.C.M. 1105(c)(1) further provides, “the accused may submit matters under
this rule within the later of 10 days after a copy of the authenticated record of trial
or, if applicable, the recommendation of the staff judge advocate. . . .” However,
R.C.M. 1105(d)(2) states: “[s]ubmission of any matters under this rule shall be
deemed a waiver of the right to submit additional matters unless the right to submit
additional matters within the prescribed time limits is expressly reserved in writing.”

       The convening authority committed no error in taking action on 5 January
2015. With his unreserved submissions on 29 December 2015, appellant waived the
sight to submit additional matters. We also note appellant has not described any
attempt to submit additional matters within the ten-day period after receiving the
record and recommendation; and, he does not now describe additional matters he
desired to submit.


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TAUALA — ARMY 20140658

                                   CONCLUSION

       We affirm only so much of the finding of guilty of Specification 2 of Charge I
as provides for the lesser-included offense of assault consummated by a battery, in
violation of Article 128, UCMJ.

       The findings of guilty of Charge III and its Specification are set aside; Charge
III and its Specification are dismissed.

      The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence in accordance with the principles of United States v.
Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305,
308 (C.M.A. 1986), we affirm only so much of the sentence as provides for a bad-
conduct discharge, confinement for four months, forfeiture of $765.00 4 per month
for six months and a reduction to E1. We recognize our decision changes the
penalty landscape, reducing the maximum confinement from ten years to two years
and six months. We also recognize appellant elected a panel trial. However, the
nature of the remaining offenses captures the gravamen of appellant’s crimes:
multiple instances of assault consummated by a battery upon his wife, endangering
their children in the process; and failing to obey his commander's order to have no
contact with his wife. We have experience with sentences resulting from cases such
as these, and, based on the affirmed findings of guilty, we are confident the panel
would have adjudged a sentence at least as severe as that which we affirm. We
further find the affirmed sentence not inappropriately severe and purged of any taint
from the errors described herein.

       All rights, privileges, and property, of which appellant has been deprived by
virtue of this decision setting aside portions of the findings of guilty and reassessing
the sentence, are ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Senior Judge CAMPANELLA and Judge WEIS concur.

                                        FOR THE COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court

4
 R.C.M. 1003(b)(2) provides “[u]nless a total forfeiture is adjudged, a sentence to
forfeiture shall state the exact amount in whole dollars to be forfeited each month
and the number of months the forfeitures will last.” (emphasis added).
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