                         UNITED STATES, Appellee

                                         v.

                        Nicolas REYES, Corporal
                     U.S. Marine Corps, Appellant

                                  No. 05-0550
                        Crim. App. No. 200301064

       United States Court of Appeals for the Armed Forces

                          Argued April 18, 2006

                          Decided June 29, 2006

EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.



                                     Counsel


For Appellant:    Lieutenant Brian L. Mizer, JAGC, USNR (argued).

For Appellee: Major Wilbur Lee, USMC (argued); Commander
Charles N. Purnell II, JAGC, USN (on brief); Colonel Ralph F.
Miller, USMC.


Military Judge:    L. K. Burnett




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Reyes, No. 05-0550/MC


    Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of

conspiracy to commit assault, assault (two specifications), and

drunk and disorderly conduct, in violation of Articles 81, 128,

and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§

881, 928, 934 (2000).   The adjudged sentence included a bad-

conduct discharge, restriction for twenty-three days, and

reduction to the lowest enlisted grade.   The convening authority

approved the sentence, and the United States Navy-Marine Corps

Court of Criminal Appeals affirmed.   United States v. Reyes, No.

NMCCA 200301064, 2005 CCA LEXIS 132, at *18, 2005 WL 995676, at

*7 (N-M. Ct. Crim. App. Apr. 29, 2005) (unpublished).

     On Appellant’s petition, we granted review of the following

issues:

          I.    WHETHER THE COURT OF CRIMINAL APPEALS
                ERRED BY HOLDING THAT THERE WAS NO
                REASONABLE PROBABILITY THAT THE RESULT
                OF THE PROCEEDING WOULD HAVE BEEN
                DIFFERENT BUT FOR DEFENSE COUNSEL’S
                INEFFECTIVE ASSISTANCE IN FAILING TO
                OBJECT TO THE ADMISSION OF VARIOUS
                DOCUMENTS IN THE APPELLANT’S SERVICE
                RECORD BOOK.

          II.   WHETHER THE COURT OF CRIMINAL APPEALS
                ERRED BY HOLDING THAT APPELLANT WAS NOT
                MATERIALLY PREJUDICED BY THE MILITARY
                JUDGE’S PLAIN ERROR IN ADMITTING INTO
                EVIDENCE VARIOUS DOCUMENTS IN
                APPELLANT’S SERVICE RECORD BOOK.



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United States v. Reyes, No. 05-0550/MC


            III. WHETHER THE COURT OF CRIMINAL APPEALS
                 ERRED BY HOLDING THAT APPELLANT WAS NOT
                 MATERIALLY PREJUDICED BY THE MILITARY
                 JUDGE’S PLAIN ERROR IN INSTRUCTING THE
                 PANEL THAT IT COULD SENTENCE THE
                 APPELLANT TO A DISHONORABLE DISCHARGE.

For the reasons set forth below, we authorize a rehearing on the

sentence.

                           I.   BACKGROUND

     Appellant’s court-martial stemmed from his participation in

a late night brawl involving two groups.     The first group,

composed of five Marines, included Appellant.    The second group

included two Marines and four civilians.     The evidence, as

summarized by the Court of Criminal Appeals, showed that:

            [A]ppellant and four of his friends walked
            into a restaurant in Washington, D.C. and,
            in short order, got into a scuffle with an
            opposing party of 6 men. The police arrived
            quickly, separated the two factions, and
            after a cursory investigation, elected to
            let each side go their own way.

Reyes, 2005 CCA LEXIS 132, at *11, 2005 WL 995676, at *4.       The

next encounter between the two groups occurred on the highway

and continued when the vehicles pulled off the road:

            Apparently dissatisfied with the outcome of
            the initial round of pugilism, the appellant
            and his group spotted the opposing group’s
            vehicle and, after an exchange of
            obscenities, began to give chase on a
            highway.

            The evidence also showed that the
            appellant’s vehicle (operated by one of the
            appellant’s co-conspirators) attempted to


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United States v. Reyes, No. 05-0550/MC


          pull in front of the opposing group’s
          vehicle in an effort to stop it, and that
          the chase continued for a number of miles.
          When the opposing group’s vehicle pulled off
          the highway, the appellant’s vehicle
          followed. There was no evidence presented
          that the appellant voiced an objection to
          the chase or otherwise attempted to dissuade
          his cohorts. Instead, the evidence showed
          that the appellant’s co-conspirators were
          angry and combative, and the appellant
          himself told investigators in a pretrial
          statement that his intentions were, “I don’t
          know, I guess to fight.”

2005 CCA LEXIS 132, at *11-*12, 2005 WL 995676, at *4.   A fight

then ensued:

          Once the vehicles stopped, the evidence
          showed that Sergeant (Sgt) D’Leon, an
          occupant of the other car who recognized the
          appellant from work, attempted to act as a
          peacemaker. In response, the appellant
          punched Sgt D’Leon in the nose, which
          ignited the fuse for the second brawl of the
          evening. It was during the second round
          that the appellant struck at least one other
          person with a baseball bat.

2005 CCA LEXIS 132, at *12, 2005 WL 995676, at *4.

     The members acquitted Appellant of one of the assault

charges, modified a charge of conspiracy to commit assault,

reduced a specification of assault with a deadly weapon to the

lesser included offense of assault consummated by a battery, and

convicted Appellant of the assault and related charges noted at

the outset of this opinion.

     During the sentencing phase of Appellant’s court-martial,

the prosecution offered into evidence Prosecution Exhibit (PE)


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United States v. Reyes, No. 05-0550/MC


6, which trial counsel represented to be “excerpts from

[Appellant’s] Service Record Book.”   The military judge admitted

the 139-page exhibit into evidence without further inquiry and

without an objection from trial defense counsel.

     As noted by the Court of Criminal Appeals, a variety of

unrelated documents were “[t]ucked between the actual excerpts”

from the Service Record Book.   Reyes, 2005 CCA LEXIS 132, at *3,

2005 WL 995676, at *1.   The extraneous material included, among

other documents, the entire military police investigation and

the pretrial advice that the staff judge advocate (SJA)

submitted to the general court-martial convening authority under

Article 34, UCMJ, 10 U.S.C. § 834 (2000).

     The extraneous material included pictures that the military

judge had determined were inadmissible, substantial amounts of

inadmissible hearsay concerning the events, and Appellant’s

pretrial offer to plead guilty to charges on which the members

had just returned a verdict of acquittal.   Reyes, 2005 CCA LEXIS

132, at *3-*4, 2005 WL 995676, at *1.    The Court of Criminal

Appeals noted that the exhibit provided the members with a

substantial amount of inadmissible evidence, adding:

          We are at a loss as to how the trial counsel
          could in good faith represent to the
          military judge that these materials were
          excerpts from the appellant’s service record
          without a further explanation as to their
          contents. We are equally perplexed by the
          trial defense counsel’s failure to object to


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United States v. Reyes, No. 05-0550/MC


           the introduction of these portions of the
           exhibit, and by the military judge’s failure
           to inquire further before admitting the
           exhibit.

2005 CCA LEXIS 132, at *4-*5, 2005 WL 995676, at *1.

      The lower court applied our holding in United States v.

Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998), which states that

in the absence of objection at trial, the reviewing court will

apply a plain error analysis under which Appellant must show

that there was an error, that the error was plain or obvious,

and that the error materially prejudiced a substantial right.

2005 CCA LEXIS 132, at *2, 2005 WL 995676, at *1.   The lower

court held that the military judge erred in admitting this

material and that defense counsel’s failure to object

constituted deficient performance.   2005 CCA LEXIS 132, at *5,

2005 WL 995676, at *1.   The court also held that the military

judge erroneously instructed the members that they could impose

a dishonorable discharge, even though such a punishment was not

authorized for the offenses resulting in a conviction.    2005 CCA

LEXIS 132, at *17, 2005 WL 995676, at *6.   The court concluded

that these errors were plain and obvious, but not prejudicial.

2005 CCA LEXIS 132, at *5-*6, *17-*18, 2005 WL 995676, at *1-*2,

*6.




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United States v. Reyes, No. 05-0550/MC


                            II.   DISCUSSION

        Issues II and III involve the third prong of the plain

error test -- whether Appellant has demonstrated that the errors

materially prejudiced a substantial right.       In the present

appeal, Appellant has not challenged the sentence

appropriateness determination of the court below.       The issue

before us is whether the errors during the sentencing phase of

Appellant’s court-martial had a prejudicial impact on the

process by which the members determined the appropriate

punishment.    In that context, if this Court concludes that the

panel might have been “substantially swayed” by the error during

the sentencing process, Appellant has met his burden.       See

United States v. Clark, 62 M.J. 195, 201 (C.A.A.F. 2005) (citing

Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

        The military judge instructed the members to deliberate on

all of the evidence that was presented.        In light of the secrecy

of panel deliberations, see Military Rule of Evidence (M.R.E.)

606(b), and the presumption that the members follow the

instructions of the military judge, see United States v. Taylor,

53 M.J. 195, 198 (C.A.A.F. 2000), we presume that the members

viewed and considered all of the evidence placed before the

panel, including the erroneously admitted documents contained in

PE 6.




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United States v. Reyes, No. 05-0550/MC


     Although some of the witness statements and photographs

included in the military police investigation reflected evidence

admitted on the merits, a number of key items contained

information that was not otherwise included in the record.    For

example, PE 6 included eleven photographs of injuries not

directly attributable to the offenses of which Appellant was

convicted, creating the risk that the members sentenced

Appellant for injuries that he did not inflict.   The SJA’s

pretrial advice contained Appellant’s offer to plead guilty to

all of the charges against him.   In view of the fact that the

members had just acquitted Appellant of some of the charges, the

information in the SJA’s pretrial advice -- that before trial

Appellant was willing to admit guilt to those offenses -- could

have left the members with the negative impression that

Appellant had deceived them at trial.    As such, this information

could have substantially influenced the members when imposing

the sentence.   See United States v. Vasquez, 54 M.J. 303, 306

(C.A.A.F. 2001) (citing Kotteakos, 328 U.S. at 765).

     In our assessment of prejudice, we also consider the

military judge’s erroneous instruction on the maximum punitive

discharge.   An instruction on the maximum punishment advises the

members as to the seriousness of the offense or offenses.

Compare Rule for Courts-Martial (R.C.M.) 1003(b)(8)(B), with

R.C.M. 1003(b)(8)(C).   Instructing the panel that they could


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United States v. Reyes, No. 05-0550/MC


adjudge a dishonorable discharge overstated the seriousness of

the offenses for sentencing purposes.    When combined with the

erroneous admission of extraneous information, the instructional

error resulted in a substantial risk that the members were

misinformed both as to the evidence that they could consider and

the range of punishments that they could impose.

     In the present case, the members adjudged a sentence that

included a bad-conduct discharge and restriction for twenty-

three days.    In view of the relatively brief period of

restriction and the absence of confinement, a punitive discharge

was not a foregone conclusion.    In that context, and in light of

the cumulative impact of the errors during sentencing, we cannot

be confident that the errors did not “substantially sway” the

members in their decision to adjudge a punitive discharge in

Appellant’s case.   See Clark, 62 M.J. at 201 (citing Kotteakos,

328 U.S. at 765).

     In light of this conclusion, we need not address the

remaining issue as to ineffective assistance of counsel.



                          III.   CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed as to findings and reversed as

to sentence.   The sentence is set aside, and the record is




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United States v. Reyes, No. 05-0550/MC

returned to the Judge Advocate General of the Navy.   A rehearing

on the sentence is authorized.




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