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

                                 Before
              J.A. FISCHER, B.T. PALMER, T.H. CAMPBELL
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        ALEXANDER P. SANCHEZ
                        SEAMAN (E-3), U.S. NAVY

                           NMCCA 201400302
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 4 April 2014.
Military Judge: CDR Michael J. Luken, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: LT David Warning, JAGC, USN.
For Appellee: Maj Tracey L. Holtshirley, USMC; Capt Cory
Carver, USMC.

                            20 October 2015

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                     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 general court-martial composed of officer and enlisted
members convicted the appellant, contrary to his pleas, of rape
and sexual assault in violation of Article 120, Uniform Code of
Military Justice, 10 U.S.C. § 920. 1 The members sentenced the
appellant to confinement for 2 years, forfeiture of all pay and
allowances for 2 years, and a dishonorable discharge. The
convening authority (CA) approved the sentence as adjudged.

     The appellant raises three assignments of error (AOE): (1)
that members below the rank of E-5 and warrant officers were
impermissibly excluded in the nomination process; (2) that the
Government failed to respond to a specific defense discovery
request for material used by the CA in the nomination and
selection of members; and (3) the court-martial order (CMO)
incorrectly states the second specification. 2

     After carefully considering the record of trial, the
submissions of the parties, and the appellant’s AOEs, 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

     The offenses in this case stem from the appellant’s
interaction with Ms. SE who he met for the first time one
evening in November 2012. Ms. SE testified that she, the
appellant, and a mutual friend went out that night and drank and
danced. At the end of the night Ms. SE drove the three of them
to the base where the appellant was stationed. When they
reached the appellant’s barracks, Ms. SE went with the appellant
to his barracks room in order to use the restroom while their
friend waited outside. Ms. SE testified that after using the
restroom, she attempted to leave when the appellant assaulted
and then raped her.

                                 Discussion

Panel Member Selection

     The appellant first asserts that the CA impermissibly and
systematically excluded members below the pay grade E-5 and all

1
  The military judge found the rape and sexual assault convictions to be an
unreasonable multiplication of charges and therefore he conditionally
dismissed the sexual assault specification (Specification 2 of the Charge) to
ripen into full dismissal upon final appellate review. Record at 632.

2
  We find merit in this AOE and order corrective action in our decretal
paragraph.
                                      2
warrant and chief warrant officers from the nomination process.
In February 2014, Commander, Naval Region Mid-Atlantic issued an
instruction 3 to commands within his region establishing the
procedure for nominations of prospective court-martial members.
The instruction directed each command to provide a certain
number of nominees in the ranks of E-5 through O-6. While the
instruction did not call for nominees below E-5, it stated that
commands were “encouraged to nominate members of any pay grade
who possess[ed] the qualifications listed in [Article 25, UCMJ]
and [the instruction].” 4 The modified court-martial convening
order for this case detailed one O-5, one O-4, three O-3’s, and
five E-7’s.

     We review the proper selection of a court-martial panel de
novo. United States v. Kirkland 53 M.J. 22, 24 (C.A.A.F. 2000).
We look at three primary factors to determine whether an
impermissible member selection has taken place: (1) Improper
motive in packing a member pool; (2) Systematic exclusion of
potential members based on rank or other impermissible variable;
and, (3) Good faith attempts to be inclusive and open the court-
martial process to the entirety of the military community.
United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). If
either of the first two criteria is present, the process is
impermissible. Id. These criteria are not only considered in
the actual panel selection process, but also in the process of
presenting nominations to the CA. United States v. Roland, 50
M.J. 66, 69 (C.A.A.F. 1999).

     In a case of systematic exclusion of members by rank, the
defense must establish the improper exclusion. Kirkland, 53
M.J. at 24. If improper exclusion is established, it is the
Government’s burden “to demonstrate that the error did not
‘materially prejudice the substantial rights of the accused.’”
Dowty, 60 M.J. at 173 (quoting Art. 59(a), UCMJ).

     Here we need not decide whether the CA systematically
excluded members based on rank, because even assuming arguendo
that he did so, we find no material prejudice to the appellant.
In reviewing this case, including the affidavits from the CA and
his staff judge advocate, we find: (1) no evidence that the
instruction was issued with an improper motive; (2) no evidence
that the CA had an improper motive when detailing the members
assigned to the appellant's court-martial; (3) the CA was a
person authorized to convene a general court-martial; (4) the CA
3
    COMNAVREGMIDLANTINST 5813.1B (28 Feb 2014)
4
    Id. at ¶ 7c.
                                        3
was properly advised of his Article 25 responsibilities, and
knew that he could pick any member within his Region’s
claimancy, not just those who had been nominated; (5) the court
members were personally chosen by the CA from a pool of eligible
candidates; (6) the CA was specifically aware that he could
select members in paygrades E-4 and E-3 and had valid reasons
for not doing so in this case 5; and, (7) all court members met
the criteria in Article 25, UCMJ.

     For the reasons above we also find no unresolved appearance
of unfairness remains. See United States v. Ward, 74 M.J. 225,
227 (C.A.A.F. 2015); Kirkland, 53 M.J. at 25. Under these
circumstances, we are convinced that the appellant’s case was
heard by a fair and impartial panel, and that any error in the
member selection process was harmless.

Discovery Violation

     Next, the appellant alleges a discovery violation as he was
not provided a copy of the court-martial member nomination
instruction despite his pretrial request for such matters.

     In the course of the discovery process, the appellant
requested “[c]opies of all written materials considered by the
CA in selecting the members detailed to the court-martial,
including all materials pertaining to persons who were not
selected as members.” 6 Despite the request, the instruction was
not provided to the appellant. 7

     Through Article 46, UCMJ, a military accused is granted the
“equal opportunity to obtain witnesses and other evidence in
accordance with such regulations as the President may
prescribe.” Also, upon request, an appellant is permitted to

5
  “As the regional command, [Navy Region Mid-Atlantic’s] member pool is drawn
from Fleet Forces Command, Surface Forces Atlantic, Submarine Forces
Atlantic, Cyber Command, and local installation commands. It is hard to
estimate exactly how may service members fall under this claimancy but it is
easily 40,000. Combing the rolls of Sailors in our claimancy to find mature,
experienced Sailors in those junior paygrades, who were not previously
nominated by their commands, would have been wholly impracticable.”
Government Motion to Attach filed on 6 Feb 2015, VADM D. R. Smith Affidavit
of 16 Jan 2015.
6
    Appellant’s Brief of 7 Nov 2014, Appendix 2 at 6.
7
  One of the member’s questionnaires referenced the instruction at the top of
each page. Appellate Exhibit XX at 22-25. The rest of the questionnaires
did not reference the instruction. AE XX.


                                        4
inspect “papers . . . within the possession, custody, or control
of military authorities . . . which are material to the
preparation of the defense[.]” RULE FOR COURTS-MARTIAL
701(a)(2)(A), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).

     When determining whether there has been a discovery
violation, this court must determine whether the evidence at
issue was subject to discovery and, if so, determine what effect
the failure to disclose had on the appellant’s trial. United
States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004). To be
eligible for defense discovery a document must be in the
Government’s possession or control and material to the
preparation of the defense. R.C.M. 701(a)(2)(A). When there
has been a discovery violation, we test that violation for
prejudice. In cases where the appellant either did not make a
discovery request or made only a general request for discovery,
the Government has the burden of proving that the error was
harmless. But, in those cases where the appellant made a
specific request for the undisclosed information, the Government
must show that the error was harmless beyond a reasonable doubt.
Roberts, 59 M.J. at 327.

     Although the appellant did not ask for the instruction in
question by name, his request was specific enough to trigger the
heightened requirement of proof beyond a reasonable doubt. 8 But,
even applying that higher standard, we find against the
appellant. For the same reasons articulated above, we find that
despite the discovery violation, the appellant was tried by a
fair and impartial panel, and that the discovery error was
harmless beyond a reasonable doubt.

                                 Conclusion

     The findings and sentence as approved by the CA are
affirmed. The conditional dismissal of Specification 2 under
the Charge shall ripen to a full dismissal when direct review
becomes final pursuant to Article 71(c), UCMJ, provided that the
rape conviction is not set aside during any subsequent appellate
review. See United States v. Britton, 47 M.J. 195, 204
(C.A.A.F. 1997) (Effron, J., concurring), overruled in part on
other grounds by United States v. Miller, 67 M.J. 385, 389

8
  Whether the discovery request was specific or general “depends upon whether
the discovery request pointed with any particularity to the evidence
desired.” United States v. Simmons, 38 M.J. 376, 385 (C.M.A. 1993)
(Crawford, J., dissenting); see United States v. Agurs, 427 U.S. 97, 106
(1976); see also United States v. Eshalomi, 23 M.J. 12, 22 (C.M.A. 1986).


                                      5
(C.A.A.F. 2009). The supplemental CMO will note that as to
Specification 2 of Charge I, the offense was committed by
“causing bodily harm.” 9

                                         For the Court



                                         R.H. TROIDL
                                         Clerk of Court




9
    United States v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998).
                                        6
