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

                                 Before
              F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        BRUNO J. RUSSELL
                  CORPORAL (E-4), U.S. MARINE CORPS

                           NMCCA 201300208
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 11 January 2013.
Military Judge: CDR John A. Maksym, JAGC, USN.
Convening Authority: Commanding General, 3d Marine
Logistics Group, Okinawa, Japan.
Staff Judge Advocate's Recommendation: LtCol P.D. Sanchez,
USMC.
For Appellant: LT Jennifer L. Myers, JAGC, USN.
For Appellee: Capt Matthew M. Harris, USMC.

                             31 March 2014

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                     OPINION OF THE COURT
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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 composed of officer and enlisted
members convicted the appellant, contrary to his pleas, of rape
and aggravated sexual contact in violation of Article 120,
Uniform Code of Military Justice, 10 U.S.C. § 920 (2006). The
members sentenced the appellant to four years’ confinement,
total forfeitures, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged.
     In summary, the appellant raises the following five
assignments of error (AOEs): (1) that the appellant was denied a
speedy trial; (2) that the appellant is entitled to credit
against his sentence for being placed on restriction tantamount
to confinement; (3) that the military judge was not impartial;
(4) that the court-martial was not properly convened; and, (5)
that the Commandant of the Marine Corps exerted unlawful command
influence on the court-martial through a series of lectures
known as the “Heritage Brief.” 1

     We granted the appellant’s Consent Motion to Attach
Documents, which consisted of his unsworn declaration under
penalty of perjury outlining the conditions placed on his
liberty following the allegations in this case. Additionally,
we granted the Government’s Motion to Attach Documents, which
consisted of ten separate orders assigning or extending the
appellant to the liberty risk program. We have examined the
record of trial, the appellant’s assignments of error, his
declaration, the liberty risk orders and the pleadings from 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 was committed. Arts.
59(a) and 66(c), UCMJ.

                                   Background

     On 26 June 2011, the appellant, Sergeant (Sgt) S, 2 and two
other Marines watched movies and drank alcohol in a barracks
room on Camp Foster in Okinawa, Japan. After consuming several
drinks and feeling the effects of the alcohol, Sgt S returned to
her barracks room to sleep. The appellant followed Sgt S to her
room, entered the room behind her, and then sexually assaulted
and raped her. Several Marines, residing in the barracks,
responded to screams from Sgt S’s room. They entered the room
and found Sgt S sitting on her bed wrapped in a towel and
crying. They also found the appellant hiding under the empty
bed in the room. Military police were called and apprehended
the appellant shortly thereafter.

     On the day following his apprehension, the appellant’s
command placed him on Class “C” Liberty Risk. In this status,
the appellant’s off-base liberty was secured. His base liberty
expired daily at 2200 and he was required to be in his assigned

1
  AOEs (3), (4) and (5) are summary AOEs raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1992).
2
    Sgt S was a corporal at the time of the offenses.
                                        2
barracks room from 2200 to 0530. He was required to remain in
the uniform of the day while on base liberty and in the barracks
area, except during physical training (PT) when he was required
to wear unit PT gear. Additionally, the appellant was not
permitted to purchase or consume alcohol. The stated purpose
for the appellant’s liberty risk status was the protection of
foreign relations between the United States and Japan. The
appellant remained on some form of liberty risk until his trial
in January 2013.

     During the presentencing proceedings, the Government
counsel stated there had been no pretrial restraint or
confinement of any kind. Record at 959. When asked by the
military judge if he concurred, the trial defense counsel
stated, “[c]oncur, sir. There has been liberty class charlie,
which we’ll be arguing in argument, but not contending that it
was any sort of pretrial restriction or restraint.” Id. During
an unsworn statement, the appellant indicated he was on Class
“C” Liberty Risk for the time period following the incident
until the date of trial, with the exception of one month when he
was on Class “B” Liberty Risk. 3 Id. at 989. During his
sentencing argument, the trial defense counsel stated “He’s been
on liberty risk for the past year and a half. He has already
been cut down somewhat. But he’s showing, you know what, he
still has some freedoms, and he hasn’t gotten in any trouble.
He hasn’t done anything like that.” Id. at 1002.

                                    Discussion

Restriction Tantamount to Confinement

     We begin our analysis with the appellant’s second AOE. On
appeal, the appellant contends for the first time that post-
incident conditions imposed on his liberty constituted pretrial
restriction tantamount to confinement and thus he is entitled to
credit against his adjudged confinement. As support for his
position, in his unsworn post-trial declaration the appellant
states inter alia: (1) that he was moved from his barracks room
to a room by the barracks duty desk for a period of between two
and four months; (2) that, while staying in this new room he was
only able to retrieve a portion of his belongings from his prior
room, that he had to inform the duty anytime he went to his
former room, and that sometimes had to be escorted; (3) that he
had a nightly 2200 curfew at which he had to be in his barracks
3
  Under Class “B” liberty risk, the appellant was permitted off-base liberty
when accompanied by a noncommissioned or higher ranked officer. Off-base
liberty secured at 2000.
                                      3
room; (4) that he had room checks every two hours between 2200
and when he left for work each morning; and (5) that he was
denied leave to return to the United States in August 2012 and
denied on-base leave twice in December 2012.

     In United States v. Allen, 17 M.J. 126, 128 (C.M.A. 1984),
the Court of Military Appeals interpreted a Department of
Defense Instruction as requiring day-for-day credit against
confinement for time an accused spends in lawful pretrial
confinement. In United States v. Mason, 19 M.J. 274 (C.M.A.
1985) (summary disposition), the court extended Allen credit to
situations involving pretrial restriction that is “equivalent”
to confinement, but that do not involve actual incarceration.
We review de novo the ultimate legal question of whether
pretrial restraint is tantamount to confinement. See United
States v. King, 58 M.J. 110, 113 (C.A.A.F. 2003) (citing United
States v. Guerrero, 28 M.J. 223 (C.M.A. 1989) (additional
citation omitted). The appellant’s failure at trial to seek
Mason credit for restraint conditions alleged to be tantamount
to confinement forfeits that issue on appeal in the absence of
plain error. Id. at 115.

     The trial defense counsel affirmatively stated that the
appellant’s liberty risk condition did not amount to pretrial
restraint of any kind, much less equate to pretrial confinement.
Additionally, in his sentencing argument, the trial defense
counsel emphasized the appellant’s law abidance despite the
freedom he enjoyed while in a liberty risk status. Given the
allegations of forcible rape and sexual assault against the
appellant, coupled with the sensitivities between the United
States and Japan over the personal conduct of military personnel
at the command’s forward deployed location in Okinawa, Japan, 4
the command’s placement of the appellant on liberty risk was
reasonable. Under these circumstances, the military judge’s
failure to sua sponte find the appellant’s liberty risk status
constituted pretrial restriction tantamount to confinement was
not error, much less plain error. Moreover, we find that the
appellant's assignment as a liberty risk was imposed for a
lawful reason to avoid international incidents and that the
conditions on his liberty were not so onerous as to constitute
pretrial restriction tantamount to confinement. See United
States v. Bradford, 25 M.J. 181, 186 (C.M.A. 1987) (holding that
proper assignment as a liberty risk is not changed to pretrial
restraint just because a court-martial is contemplated).
4
  During the time of the appellant’s liberty risk, off-base liberty for all
Marines in Okinawa secured at midnight. Appellant’s Declaration of 26 Nov
2013.
                                      4
Speedy Trial

      The appellant also contends for the first time on appeal
that he was denied a speedy trial under the Sixth Amendment and
RULE FOR COURTS-MARTIAL 707, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.). R.C.M. 707(a) provides, in relevant part, that an accused
shall be brought to trial within 120 days after the earlier of
(1) the preferral of charges; or (2) the imposition of restraint
under R.C.M. 304(a)(2)-(4). Conditions on liberty are defined
in R.C.M. 304(a)(1) and do not trigger the R.C.M. 707 speedy
trial clock. Likewise, Sixth Amendment protections extend to
courts-martial and are triggered upon preferral of charges or
the imposition of pretrial restraint. See United States v.
Vogan, 35 M.J. 32, 33 (C.M.A. 1992).

     The appellant asserts the speedy trial clock under the
Sixth Amendment and R.C.M. 707 began when he was placed on
liberty risk because the primary purpose of this restraint was
to ensure his presence for court-martial. Appellant’s Brief of
26 Nov 2013 at 12-13. However, as we previously stated we find
the appellant’s assignment of liberty risk was imposed for the
protection of foreign relations and to avoid international
incidents and constituted “conditions on liberty” under R.C.M.
304(a)(1). Thus, we find the speedy trial clock was not
triggered under R.C.M. 707 when the appellant was placed on
liberty risk. The speedy trial clock commenced when charges
were preferred on 1 June 2012 and the appellant was provided a
speedy trial under the Sixth Amendment and R.C.M. 707.

Military Judge’s Impartiality

     The appellant asserts that the military judge abandoned his
neutral role when he interrupted the trial defense counsel as he
was impeaching the victim with a prior inconsistent statement
from her Article 32, UCMJ, testimony. The military judge read
the members an additional portion of the victim’s Article 32,
UCMJ, testimony and then explained to the members that he did
this to provide them the “full context” of the victim’s prior
statement. Record at 633. Additionally, the appellant asserts
that the military judge was not neutral when he interrupted the
testimony of the Government’s DNA expert and advised her to
speak in layman’s terms because she was “losing” some of the
members. Id. at 782.

     “‘When a military judge's impartiality is challenged on
appeal, the test is whether, taken as a whole in the context of
[the] trial, [the] court-martial's legality, fairness, and

                                     5
impartiality were put into doubt’ by the military judge's
actions.” United States v. Quintanilla, 56 M.J. 37, 78
(C.A.A.F. 2001) (quoting United States v. Burton, 52 M.J. 223,
226 (C.A.A.F. 2000)). While a military judge must maintain his
“fulcrum position of impartiality,” he can and sometimes must
ask questions in order to clear up uncertainties in the evidence
or to develop the facts further. United States v. Ramos, 42
M.J. 392, 396 (C.A.A.F. 1995) (citations omitted). We apply
this test from the viewpoint of the reasonable person observing
the proceedings. Id.

     Examining the two instances, we find that the military
judge acted to assist the members by providing them a fuller
picture of the victim’s prior statement and to prevent confusion
that can result from expert testimony. Nothing in these actions
by the military judge causes us to believe that a reasonable
person would question the legality, fairness, or impartiality of
the court-martial. We conclude that the military judge did not
act as a partisan advocate, and we decline to grant relief.

Unlawful Command Influence

     The appellant also, in a summary AOE, avers that the
Commandant of the Marine Corps exerted unlawful command
influence (UCI) on the members through a series of lectures
known as the “Heritage Brief.” We review allegations of UCI de
novo. United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F.
1999). Article 37(a), UCMJ, states, “No person subject to this
chapter may attempt to coerce or, by any unauthorized means,
influence . . . the action of any convening, approving, or
reviewing authority with respect to his judicial acts.” The
appellant has the initial burden of producing sufficient
evidence to raise unlawful command influence. United States v.
Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994). This threshold is
low, but it must be more than “a bare allegation or mere
speculation.” United States v. Johnston, 39 M.J. 242, 244
(C.M.A. 1994) (citation omitted).

     The defense did not raise UCI as an issue at the trial
level; however, the Heritage Brief was discussed during voir
dire. In general voir dire, all but two of the members
indicated they attended the Heritage Brief. Record at 146.
During individual voir dire none of the members indicated that
attending the Heritage Brief would impact their decisions in the
court-martial or that they felt any pressure from the Commandant
or the CA for any particular outcome in the appellant’s case.
Id. at 160-376. In an Article 39(a), UCMJ, session the military

                                6
judge sua sponte addressed the Heritage Brief and unspecified
statements made by the Secretary of the Navy and the Chief of
Naval Operations. Id. at 234-36. He found no actual UCI had
taken place, but concluded there was an appearance of UCI “by
virtue of the very things these individuals have said.” Id. at
236. In order to alleviate the appearance of UCI, the military
judge granted the defense four peremptory challenges. Id. The
trial defense counsel raised no objection to the military
judge’s approach and declined further comment on the issue
despite the military judge’s invitation. Id.

     The record before us is devoid of facts that, if true,
constitute UCI. Moreover, we find no indication whatsoever that
the proceedings were unfair. Stombaugh, 40 M.J. at 213. The
appellant has failed to meet his initial burden of production,
and therefore we decline to grant relief.

                  Remaining Assignment of Error

     With regard to the appellant’s remaining summary AOE, after
careful review of the record and pleadings, we find it to be
without merit. United States v. Clifton, 35 M.J. 79, 81-82
(C.M.A. 1992).

                              Conclusion

     The findings and the sentence as approved by the CA are
affirmed.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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