       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
            Nhubu C. CHIKAKA, Staff Sergeant
            United States Marine Corps, Appellant
                          No. 16-0586
                    Crim. App. No. 201400251
         Argued May 23, 2017—Decided June 20, 2017
                 Military Judge: David M. Jones
   For Appellant: Lieutenant Doug Ottenwess, JAGC, USN
   (argued); Major M. Brian Magee, USMC.
   For Appellee: Lieutenant Commander Jeremy R. Brooks,
   JAGC, USN (argued); Lieutenant Robert J. Miller, JAGC,
   USN, and Brian K. Keller, Esq. (on brief); Captain Cory A.
   Carver, USMC.
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge ERDMANN, Judges STUCKY and
   SPARKS, and Senior Judge COX, joined.
                     _______________

   Judge OHLSON delivered the opinion of the Court.

    We granted review to determine whether the lower court
erred in concluding that Appellant’s claim of unlawful com-
mand influence (UCI) was “without merit.”1 United States v.
Chikaka, 76 M.J. 40, 41 (C.A.A.F. 2016). For the reasons set
forth below, we hold that Appellant presented sufficient evi-
dence of UCI during the sentencing phase of his court-
martial to cause the burden to shift to the Government to
disprove UCI beyond a reasonable doubt. Accordingly, the
decision of the United States Navy-Marine Corps Court of
Criminal Appeals (CCA) is affirmed as to the findings but
reversed as to the sentence.



   1United States v. Chikaka, No. NMCCA 201400251, 2016 CCA
LEXIS 223, at *39 n.40, 2016 WL 1456741, at *13 n.40 (N-M. Ct.
Crim. App. Apr. 12, 2016).
           United States v. Chikaka, No. 16-0586/MC
                     Opinion of the Court

                        I. Background
    During the spring and summer of 2012, Appellant was a
married recruiter in the Sixth Marine Corps District. The
evidence adduced at trial demonstrated that Appellant en-
gaged in inappropriate conduct with four female poolees 2
during this time period, and that he continued his miscon-
duct with one poolee into 2013. This misconduct with the
four poolees “included his sending thousands of inappropri-
ate electronic communications, engaging in unwanted sexual
activity with two of the four [poolees], and plying a third
[poolee] with alcohol and commencing an adulterous rela-
tionship with her.” Chikaka, 2016 CCA LEXIS 223, at *4,
2016 WL 1456741, at *2.
    Appellant’s wrongdoing resulted in a trial before a gen-
eral court-martial composed of officer and enlisted members.
He was convicted, contrary to his pleas, of one specification
of attempted abusive sexual contact, nine specifications of
violating a general order, one specification of wrongful sexu-
al contact, one specification of abusive sexual contact, one
specification of adultery, one specification of indecent lan-
guage, and four specifications of obstruction of justice, in vio-
lation of Articles 80, 92, 120, and 134, Uniform Code of Mili-
tary Justice, 10 U.S.C. §§ 880, 892, 920, 934 (2006 & 2012).
    During the sentencing phase of the court-martial, the
military judge admitted two pieces of evidence relevant to
the issue before us. First, the military judge admitted a pho-
tograph of the Commandant of the Marine Corps shaking
hands with one victim’s great grandfather who was receiving
the Congressional Gold Medal. Second, the military judge
permitted Appellant’s commanding officer to testify as fol-
lows when trial counsel asked him to explain “how im-
portant it is to set a strong example for general deterrence
in [the Sixth] Marine Corps District as a whole”:
       And I would say [it] … goes beyond that, beyond re-
       cruiting, but … if you haven’t been a recruiter -- I
       know I can see by the experience you have, you’ve
       been around it. You’ve worked with recruiters. You
       understand that. One of you may be a recruiter. If

   2 A poolee is an individual who has enlisted in the Marine
Corps but has not yet reported for basic training.



                                2
           United States v. Chikaka, No. 16-0586/MC
                     Opinion of the Court

      you -- if this type of thing, any type of misconduct,
      fraudulent enlistment, some kind of crime out in
      town, driving under the influence, those are all bad.
      But if you have something that completely goes
      against what we stand for, preys upon a weaker
      group of people, younger, they’re less experienced;
      in many cases, they’re juveniles, 17. You can con-
      sider 18 an adult. Sometimes they don’t act that
      way. And it goes -- and we say, “Hey, if we’re just
      going to treat that lightly.” So you’re going to get,
      you know, there’s maybe … a precedent set that it’s
      somewhat on par with someone that gets a DUI or
      that didn’t listen when a parent said, “Well, he did
      have surgery when he was 12.” “Well, I don’t know
      if I want to bring that up because I’m afraid this
      kid won’t be able to join.” To me there’s no parallel
      there.
      So it needs to be something that says, “If you do
      this, everything around you, generally speaking, is
      going to stop.” And Marines that are potentially in
      a vulnerable window -- for whatever reason -- that
      might be predisposed to go this way, would see that
      as a deterrent and say that, “There’s no middle
      ground. There’s no way to negotiate out of this.
      There’s no way to lessen the blow. It’s a significant
      blow. It’s something I do not want to have happen
      to me.”
    Trial counsel then argued for a sentence of confinement
for ten years. (The maximum sentence of confinement for
Appellant’s offenses was thirty-six years and six months.) In
seeking this sentence, trial counsel referenced both the
Commandant’s photograph and the commanding officer’s
testimony:
      [The victim] couldn’t look her great-grandfather in
      the eye at the same time he’s receiving a Congres-
      sional Gold Medal by our Commandant and say,
      “Hey, this is what’s happening to me. This is my
      experience in the United States Marine Corps.”
      ….
      … General deterrence is a big issue, and we want
      to talk about everything [the commanding officer]
      talked about, … the need to send a strong message
      inside the Marine Corps, not just to the high
      schools and the community, but for all the can-
      vas[s]ing recruiters out there right now that might



                               3
           United States v. Chikaka, No. 16-0586/MC
                     Opinion of the Court

      be teetering, that might be having a difficult home
      situation, difficult marriage, that are thinking,
      “Here’s a high school kid, poolee.” They’re working
      80-hour work weeks. We need a strong message
      that … this misconduct will not be tolerated. This
      is different. This is not misusing the GOV, misus-
      ing the government cell. This is sexual assault, at-
      tempted sexual assault of another poolee, adultery
      with another poolee, indecent language with anoth-
      er poolee over years.
The members sentenced Appellant to confinement for twelve
years, a reduction to the pay grade of E-1, forfeiture of all
pay and allowances, and a dishonorable discharge.
   The convening authority approved the sentence, but the
CCA set aside this action and afforded Appellant the oppor-
tunity to submit clemency materials. On remand, the con-
vening authority approved a sentence of confinement for ten
years and the remaining adjudged sentence.
    In Appellant’s subsequent appeal, the CCA held, in rele-
vant part, that the military judge did not abuse his discre-
tion in admitting the Commandant’s photograph. Chikaka,
2016 CCA LEXIS 223, at *28–30, 2016 WL 1456741, at *10.
Further, the CCA more generally held that Appellant’s claim
of unlawful command influence was “without merit.” Id. at
*39 n.40, 2016 WL 1456741, at *13 n.40. However, the CCA
also determined that the military judge erred in admitting
two pieces of evidence, including the commanding officer’s
presentencing testimony, albeit on evidentiary grounds ra-
ther than on UCI grounds. Id. at *30–39, 2016 WL 1456741,
at *11–13. The CCA also concluded that three obstruction of
justice specifications constituted an unreasonable multipli-
cation of charges, consolidated these specifications, and af-
firmed the findings as to the consolidated specification and
the remaining specifications and charges. Id. at *14–15,
2016 WL 1456741, at *5–6. “[T]o obviate the impact of these
errors,” the CCA reassessed Appellant’s sentence and af-
firmed a sentence that included confinement of five years, a
reduction to E-1, forfeiture of all pay and allowances, and a
dishonorable discharge. Id. at *44–45, 2016 WL 1456741, at
*15.




                               4
            United States v. Chikaka, No. 16-0586/MC
                      Opinion of the Court

   We then granted review of the following issue:
       Where the military judge admitted on the merits a
       campaign plan to “fully operationalize the Com-
       mandant’s guidance” from the Heritage Tour, and
       then during sentencing admitted a picture of the
       Commandant and allowed Appellant’s commanding
       officer to testify that it was important for the mem-
       bers to adjudge a harsh sentence, did the lower
       court err in failing to find evidence of unlawful
       command influence sufficient to shift the burden to
       the Government to disprove unlawful command in-
       fluence in this case?
Chikaka, 76 M.J. at 41. 3
                II. Applicable Legal Principles
    We review allegations of unlawful command influence de
novo. United States v. Salyer, 72 M.J. 415, 423–24 (C.A.A.F.
2013). In conducting this review, we first must determine
whether an appellant has met his or her initial burden of
presenting “some evidence” of unlawful command influence.
See United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017).
This “some evidence” standard is low, although an appellant
must allege “more than mere allegation or speculation.”
Salyer, 72 M.J. at 423. Once an appellant has met this ini-
tial evidentiary burden, the burden shifts to the government
to rebut the allegation of UCI beyond a reasonable doubt. Id.
                         III. Discussion
    In the instant case, Appellant argues that he established
“some evidence” of unlawful command influence at both the
findings and sentencing phases of his trial. Although we
conclude that Appellant has failed to show “some evidence”
of UCI during the findings portion of his court-martial, 4 we

   3  We also granted review to determine whether the military
judge erred by instructing the members, “‘[i]f, based on your con-
sideration of the evidence, you are firmly convinced that the ac-
cused is guilty of the crime charged, you must find him guilty.’”
Chikaka, 76 M.J. at 41. Because Appellant did not object to the
instruction, we hold that the military judge did not plainly err in
accordance with our decision in United States v. McClour, 76 M.J.
23 (C.A.A.F. 2017).
   4 The granted issue refers to “a campaign plan to ‘fully opera-
tionalize the Commandant’s guidance’ from the Heritage Tour” as


                                5
            United States v. Chikaka, No. 16-0586/MC
                      Opinion of the Court

reach a different conclusion, as demonstrated below, with
respect to the sentencing phase of his trial.
    In United States v. Ohrt, we indicated that the use of “a
commanding officer before a court-martial … to influence the
court members into returning a particular sentence” impli-
cates unlawful command influence. 28 M.J. 301, 303 (C.M.A.
1989). Specifically, we stated: “The question of appropriate-
ness of punishment is one which must be decided by the
court-martial; it cannot be usurped by a witness.” Id. at 305.
Similarly, in United States v. Cherry, we held that “a com-
mander’s opinion as to an appropriate punishment …. in-
vade[s] the province of the court-martial and constitute[s]
unlawful command influence.” 31 M.J. 1, 5 (C.M.A. 1990)
(citations omitted). And yet, despite this long-standing prec-
edent, Appellant’s commanding officer, who outranked the
entire panel and was within the chain of command of at
least one member, was permitted to testify at some length
about the importance of a harsh sentence being imposed by
the court-martial. We conclude that this testimony consti-
tuted “some evidence” of unlawful command influence. 5
    The Government argues that the CCA’s sentence reas-
sessment remedied any unlawful command influence in Ap-
pellant’s case. However, the CCA did not grant relief on the
basis of unlawful command influence. Instead, the CCA re-

evidence of unlawful command influence. Similarly, Appellant
cites this “campaign plan” (i.e., the Sixth Marine Corps District’s
Operation Restore Vigilance Campaign Plan which addressed
sexual assault within the Marine Corps) as a basis for establish-
ing a claim of unlawful command influence. However, we conclude
that the record before us does not contain “some evidence” that
either the campaign plan or the underlying Heritage Tour caused
unlawful command influence to occur in this particular case. Ac-
cordingly, we do not address this matter further.
   5  We also are concerned about the admission of the Comman-
dant’s photograph. It is unclear what legitimate purpose this pho-
tograph served, and it raises the specter of the Government im-
properly inserting the Commandant into the deliberation room. In
light of our conclusion concerning the presentencing testimony of
Appellant’s commanding officer, we need not decide whether the
admission of the photograph constituted “some evidence” of un-
lawful command influence. We leave this issue for the CCA to
evaluate on remand.



                                6
           United States v. Chikaka, No. 16-0586/MC
                     Opinion of the Court

assessed Appellant’s sentence because of evidentiary error
and unreasonable multiplication of charges. Thus, the issue
of unlawful command influence remains unresolved for pur-
poses of sentencing. Accordingly, we remand in order for the
CCA to determine whether, in light of our decision in Boyce,
there was unlawful command influence at the sentencing
stage of the instant case and, if so, whether any additional
sentencing relief is warranted.
                         IV. Decision
   The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed as to the findings but
reversed as to the sentence. The record of trial is returned to
the Judge Advocate General of the Navy for remand to that
court for further proceedings consistent with this opinion.




                              7
