              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
             R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                          IAN R. DUNTON
                  CORPORAL (E-4), U.S. MARINE CORPS

                            NMCCA 201300148
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 28 September 2012.
Military Judge: LtCol Elizabeth Harvey, USMC.
Convening Authority: Commanding Officer, 7th Marine
Regiment, 1st Marine Division (REIN), I Marine
Expeditionary Force, MCAGCC, Twentynine Palms, CA.
Staff Judge Advocate's Recommendation: Col D.K. Margolin,
USMC.
For Appellant: LT Jennifer Myers, JAGC, USN.
For Appellee: LT Ian MacLean, JAGC, USN.

                              29 May 2014

     ---------------------------------------------------
                    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.

WARD, Senior Judge:

     Officer members sitting as a special court-martial
convicted the appellant, contrary to his pleas, of two
specifications of wrongful sexual contact and one specification




                 Corrected Opinion Issued 15 July 2014
of assault consummated by a battery, 1 in violation of Articles
120 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 920
and 928. The members sentenced the appellant to 12 months’
confinement, to forfeit $994.00 pay per month for 12 months, to
be reduced to pay grade E-1, and to be discharged with a bad-
conduct discharge. The convening authority approved the
sentenced as adjudged and, except for the bad-conduct discharge,
ordered it executed.

     On appeal, the appellant alleges multiple assignments of
error. 2 We find merit in the appellant’s argument that the
military judge erred by admitting over defense objection certain
testimony concerning the appellant’s sexual orientation. Under
the circumstances of this case, however, we conclude that the
error was harmless. We further find that no error materially
prejudicial to the substantial rights of the appellant occurred.
Arts. 59(a) and 66(c), UCMJ.



1
  Although charged with wrongful sexual contact, the members found the
appellant guilty of assault consummated by a battery as a lesser included
offense.
2
  (1) That Specifications 1 and 2 of the Charge, alleging wrongful sexual
contact, by “touching the chest and touching the buttocks” of two male
Marines failed to state an offense in that the word “chest” alleged in the
specifications does not fall within the statutory definition of sexual
contact under Article 120(t)(2), UCMJ;

(2) That the military judge erred by failing to sua sponte excuse two members
for their expressed views on homosexuality;

(3) That the Commandant of the Marine Corps unlawfully influenced the panel
through his remarks made at a brief conducted at Twentynine Palms (“Heritage
Brief”);

(4) That the military judge erred by admitted improper character evidence to
prove the appellant’s sexual orientation and such evidence inflamed the panel
who were already predisposed against homosexual conduct;

(5) That the guilty finding for assault consummated by a battery is not
legally and factually sufficient;

(6) That the military judge erred by denying his motion for release from
pretrial confinement and erred in failing to award appropriate sentence
credit pursuant to United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983), raised
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982); and

(7) That cumulative error at trial warrants relief.

                                      2
                        Factual Background

     The appellant, a noncommissioned officer and infantry squad
leader, faced at trial three specifications of wrongfully
committing sexual contact in the barracks upon three different
members of his company. At the time of his offenses, two of the
three Marines were members of his platoon; Corporal (Cpl) [P]
and Lance Corporal (LCpl) [E]. A third victim, LCpl [B] lived
in the same barracks and was a member of a different platoon
within the company.

     The first incident involved Cpl [P]. After a night of
drinking out in town with the appellant, Cpl [P] returned to his
barracks room and “passed out” in his rack. Later that evening,
the appellant came into his room and sat down next to Cpl [P],
who lay asleep in his bed. Cpl [P]’s roommate, Cpl [W], heard
what he would later describe at trial as “a rustling noise” and
then heard Cpl [P]’s voice saying “get your f[**]king hands out
of my pants.” 3 When Cpl [W] got out of his bed and went to look,
he observed the appellant sitting next to a prone Cpl [P] with
one hand down Cpl [P]’s pants. Cpl [W] then told the appellant
to leave the room and he obliged. The next morning, Cpl [W]
told Cpl [P] what happened. Although Cpl [P] later testified at
trial that learning of the appellant’s conduct “made him angry”,
he did not report the incident. 4

     Several days later, the incident with LCpl [B] occurred.
The appellant, drunk, approached LCpl [B], also drunk, on the
catwalk outside LCpl [B]’s barracks room. LCpl [B] then went
into his room and went to bed. The next morning LCpl [B] awoke
to find the appellant lying naked next to him in his bed with
the appellant’s hand under LCpl [B]’s shirt resting on his
chest. LCpl [B] hurriedly got up and went into the bathroom.
After showering and shaving, he came back into the room to find
the appellant gone. LCpl [B] then went downstairs for morning
formation. As several others had already seen the appellant
lying in bed next to LCpl [B], word quickly spread among the
platoon, and several other Marines at formation began teasing
LCpl [B]. However, LCpl [B] did not report what had happened.

3
    Record at 294-95.
4
    Id. at 316-17.

                                3
     The third incident occurred some months later, this time
with LCpl [E]. That evening while LCpl [E] was sitting in his
room playing a video game, the appellant knocked on the door.
After LCpl [E] opened the door he sat back down and continued
playing his video game. The appellant eventually came over and
sat down on the arm of LCpl [E]’s chair, drinking a beer and
watching. LCpl [E] testified at trial that the appellant leaned
over, unzipped LCpl [E’s] fleece shirt, placed his hand down
LCpl [E]’s shirt and began rubbing LCpl [E’s] bare chest. LCpl
[E] then described how after he removed the appellant’s hand and
leaned forward, the appellant “shoved” his hand down the back of
LCpl [E]’s sweatpants and grabbed his buttocks. 5 LCpl [E]
abruptly stood up and after telling his roommate he needed to
go do laundry, he left the room. LCpl [E] then went to find the
duty noncommissioned officer (DNCO) to get the appellant out of
his room. Approximately five minutes later the DNCO came to the
room and told the appellant to leave.

     After speaking with the DNCO, LCpl [E] told Cpl [W] what
happened. Cpl [W] and LCpl [E], along with two others, Cpl [S]
and Cpl [P], then went to the duty hut to report the incident in
the duty logbook. On the way to the duty hut or shortly after
arrival, the group encountered the appellant. Accounts of what
happened next differed at trial. What is clear is that an
altercation ensued during which Cpl [P] punched the appellant in
the face and one other Marine took the appellant to the ground
in a “full mount” hold. Following this scuffle, LCpl [E]
reported the earlier events of the evening.

     An investigation ensued soon after LCpl [E] reported the
appellant’s conduct. Along with LCpl [E], Cpl [P] and LCpl [B]
also reported unwelcome physical contact from the appellant that
occurred months earlier. After charges were referred to trial,
several additional Marines also reported similar unwelcome
physical contact from the appellant. 6 One of these additional
Marines was LCpl [T]. He alleged that one evening the appellant
approached him while LCpl [T] was standing on the catwalk
outside his barracks room. He described the appellant as being
very drunk. The appellant came up and put his arm around LCpl

5
    Id. at 418.
6
    Appellate Exhibit XVII at 13-14, 31-32, 34-43.

                                        4
[T]’s shoulder in a manner that LCpl [T] later described at
trial as “awkward.”

     During his testimony, LCpl [T] also described how, in an
effort to get away from the appellant, he went into his barracks
room and sat down in a chair in front of his TV and started
playing a video game. He testified that the appellant followed
him into the room and sat down on the floor next to him.
Moments later, the appellant placed his head on LCpl [T]’s leg
and began rubbing his face along the top of LCpl [T]’s thigh.
LCpl [T] testified that next the appellant began “passionately
kissing” LCpl [T]’s forearm at which point LCpl [T] jumped up
and exclaimed “What the f**k!” The appellant then left the
room.

     The appellant’s sexual orientation and the topic of
homosexuality in the military first appeared at trial as a topic
addressed in supplemental member questionnaires requested by
individual military counsel (IMC) and approved by the military
judge. 7 During group and individual voir dire, the military
judge and counsel for both sides also discussed the issue of
homosexuality with the members. 8 During the Government’s case-
in-chief, the trial counsel avoided any overt reference to the
appellant’s sexual orientation; however, the defense opted for a
different approach.

     In his opening statement, IMC made the following comments
alluding to the appellant’s sexual orientation and a motive by
the victims for fabricating their allegations:

             Gentlemen, how do you make a mountain out of a
        molehill? You just throw dirt on it. Today you’re
        going to hear testimony about Corporal Dunton and that
        when he gets drunk, he gets overly friendly. He’s a
        bubble breaker. Means that he invades your personal
        space. Now, what you’re not going to hear is that
        Corporal Dunton is a criminal; that Corporal Dunton
        committed any sexual contact, any sexual assault on
        anybody.

7
  AE VI, Defense Motion for Appropriate Relief; AE XXIV, Members
Questionnaires; Record at 166.
8
    Record at 232-74.

                                      5
          Now, let’s look at what happened on the night of
     February 27th of this year. It was a little molehill
     that began with [LCpl E]. That night, the members –
     later that night, is when the real crime occurred.
     That was when [LCpl P], [Cpl W] and [Cpl S] committed
     a hate crime on Corporal Dunton. When Corporal Dunton
     was coming up, they punched him twice in the face.

                             . . . .

     Now, don’t let the government try to tell you that
     this was self-defense or protection of a third-party.
     You need to see it for what it is. It was a hate
     crime. If this were - - if the same incident occurred
     in, say, Alabama and it was three white guys beating
     up a black guy for the same reason, that would be a
     hate crime.

                             . . . .

          [LCpl B] became a butt of the joke for the whole
     platoon. And they would always kid him about . . .
     being caught in the same bed with Corporal Dunton.
     And he didn’t like that. Because when Corporal Dunton
     was under the microscope and he was the fag of the
     platoon, anybody who came up - - whose name was
     associated with him, also would take it with the same
     butt of the joke. . . .

          So to take the heat off of himself to quit being
     the butt of the joke of the platoon, [LCpl B] said,
     you know what, what happened to me there was nothing
     consensual or anything about that night. That was a
     sexual assault. It wasn’t until that night that all
     of a sudden he said, hey, I was sexually assaulted as
     well to deflect the attention off of himself (sic).

Record at 288-90.

     During closing argument, IMC returned to this theme,
arguing that while the appellant may be perceived as “creepy” by
others, the “victims” brought their allegations forward as a
means of deflecting attention and accountability for assaulting


                                6
the appellant, or in response to incessant teasing within the
platoon and being perceived as homosexual. 9

                                  Analysis

1. Relevance of the Appellant’s Sexual Orientation, Probative
Value and Attendant Prejudice

      Before trial, the Government sought to admit under MILITARY
RULE OF EVIDENCE 404(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.) evidence indicating that the appellant had a sexual
interest in men. This evidence consisted of, inter alia, LCpl
[T]’s testimony that the appellant followed him into his
barracks room, then the appellant laid his head down on LCpl
[T]’s leg and began “passionately kissing” LCpl [T]’s forearm.
Following a defense motion in limine, 10 the military judge ruled
that the appellant’s interaction with LCpl [T] was sufficiently
similar to the charged offenses involving LCpl [P], LCpl [B] and
LCpl [E], and therefore probative of the appellant’s “intent to
gratify his sexual desire.” Furthermore, she concluded, “[t]he
probative value of this evidence [was] not substantially
outweighed by the danger of unfair prejudice.” 11 The Government
subsequently offered this testimony at trial.

     During its case-in-chief the Government also called LCpl
[B], who testified concerning his encounter with the appellant.
He testified that he was standing next to LCpl [J] on the
catwalk outside his barracks room one evening when the appellant
approached them, drunk and stumbling. LCpl [B] explained that
he went inside his room and his next recollection was when he
woke up the next morning in his rack with the appellant lying
naked beside him, the appellant’s hand resting on LCpl [B]’s
chest.


9
  In reference to the incident with LCpl [B], IMC argued that “It got spread
around. The whole company heard . . . [t]hat morning after that incident,
spread like wild fire. And now who’s the butt of everybody’s jokes? And now
who’s perceived as being the homo, like Corporal Dunton? Lance Corporal
[B].” Record at 555.
10
     AE XVI.
11
  Record at 168; AE LXXIII, Court Ruling on Defense Motion in Limine to
Exclude Evidence under M.R.E. 404(b), at 5-6.


                                      7
     After LCpl [B] stepped down from the witness stand, the
trial counsel next called LCpl [J]. LCpl [J] explained that he
was standing next to LCpl [B] outside LCpl [B]’s barracks room
that evening and he also saw the appellant approach, drunk and
stumbling. Once he saw the appellant, however, he decided to
leave and go to his own room. Despite LCpl [B]’s testimony
placing the appellant drunk and outside LCpl [B]’s room, the
military judge permitted the trial counsel to elicit the
following testimony over defense objection: 12

      TC: Okay. Lance Corporal [J], just to remind you of my
      question before we broke there. You said that you
      decided to leave when you saw the [appellant] coming
      down the catwalk?
      WIT: Yes, sir.


      TC: Why?
      WIT: Corporal Dunton’s prior activities or prior
      knowledge of him. He would get uncomfortably close to
      you, sir. And I just didn’t want to make it a
      situation.

Although LCpl [J] did not elaborate on his meaning of “a
situation,” the trial counsel continued to explore the innuendo:

      TC: Why did you tell [LCpl B] that he should go back
      to his room to – -
      WIT: I told [LCpl B] to go back to his room to stop
      anything from happening, sir.


      TC: At this point, did you go back to your room?
      WIT: I did, sir.


      TC: From the point you went back to your room, do you
      know anything else about the - - about the [LCpl B]
      situation?
      WIT: Not anything personally, but I heard things
      around.

12
  IMC objected on relevance grounds and improper character evidence under MIL.
R. EVID. 404(b).

                                      8
Record at 373-74 (emphasis added).

     a) Mil. R. Evid. 404(b) and the Uncharged Misconduct
     Involving LCpl [T]

      As the appellant objected to this evidence at trial, we
review for an abuse of discretion. United States v. Staton, 69
M.J. 228, 230 (C.A.A.F. 2010). “Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith”;
however, such evidence may “be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, [or] identity . . . .” MILITARY RULE OF EVIDENCE 404(b),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). To be admissible
under MIL. R. EVID. 404(b), evidence of uncharged misconduct must
satisfy the three-pronged test enumerated in United States v.
Reynolds, 29 M.J. 105, 109 (C.M.A. 1989). 13

     We begin our analysis by underscoring the importance of
clearly articulating the theory of relevance under MIL. R. EVID.
404(b). Here, the Government initially offered LCpl [T]’s
testimony to show intent and a “common scheme [] that when [the
appellant] gets drunk, [he] finds a junior Marine or a Marine
equal to him, somebody that he feels that he can get close to,
and encroaches on their physical space in his intoxicated state,
and progressively increases his touching with the intent to
sexually gratify himself.” Record at 144. The military judge
agreed, in large part, with the theory of intent mainly due to
the high degree of similarity between the conduct involving LCpl
[T] and the charged offenses. Appellate Exhibit LXXIII at 5-6.
In articulating her rationale, she distinguished the conduct
involving LCpl [T] from other conduct offered by the Government
as proof of sexual intent.

     On the third Reynolds prong, the military judge concluded
that “this probative value [of intent] is not outweighed by the
danger of unfair prejudice to the [appellant]” and that the
13
  The test looks to the following three factors: 1) does the evidence
reasonably support a finding by the court members that the appellant
committed prior crimes, wrongs or acts; 2) what “fact . . . of consequence”
is made “more” or “less probable” by the existence of this evidence; and 3)
is the “probative value . . . substantially outweighed by the danger of
unfair prejudice?” Id. at 109.


                                      9
appellant’s uncharged conduct with LCpl [T] was “prejudicial, to
be sure, but not unfairly so.” Id. at 6. As she conducted her
MIL. R. EVID. 403 balancing on the record, we afford her decision
great deference and only determine whether therein lies a
“‘clear abuse of discretion.’” United States v. Tanksley, 54
M.J. 169, 176-77 (C.A.A.F. 2000) (quoting United States v.
Manns, 54 M.J. 14, 166 (C.A.A.F. 2000)). As she differentiated
between the probative value and attendant prejudice, and
distinguished this evidence from other uncharged acts offered by
the Government, we afford her great deference and conclude that
there lies no clear abuse of discretion.

     b) Probative Value and Attendant Prejudice of LCpl [J]’s
     Testimony

     In evaluating the testimony of LCpl [J], however, we are
not so convinced. In short form, there existed no evidentiary
value in his explaining his reason for leaving the scene when
the appellant approached him and LCpl [B] on the catwalk.
Anything beyond corroborating LCpl [B]’s testimony placing the
appellant outside LCpl [B]’s barracks room was of little value.

     By exploring LCpl [J]’s desire to “avoid a situation” with
the appellant, LCpl [J]’s testimony improperly bolstered LCpl
[B]’s testimony of what happened later with unnecessary innuendo
and speculation. Explaining “why [LCpl J] left” was not
material to any controversy in the case. Defense counsel never
disputed that the appellant entered LCpl [B]’s barracks room
that evening after LCpl [J] left. With little, if any,
probative value and the potential prejudice arising from the
sexual overtones associated with the “situation” alluded to by
LCpl [J], we conclude that the military judge erred in allowing
this line of testimony. Despite recent changes in the military
concerning homosexuality, the subject remains controversial, a
fact borne out by the military judge’s excusal of two members
following voir dire based on their views of the subject.

       Having found error, we turn to the subject of prejudice.
This was a case involving multiple allegations of unwanted
sexual contact by a male accused upon other males. The issue of
the appellant’s sexual orientation was placed in front of the
members before trial through the supplemental questionnaires.
The Government’s case relied on numerous witnesses’ descriptions

                               10
of the appellant passed out and naked in the rack with other
Marines. Even the defense made numerous references to the
appellant’s sexual orientation during opening statement and
closing argument. Consequently, the innuendo arising from LCpl
[J]’s testimony likely caught no one by surprise. Finally, the
members found the appellant not guilty of the charged offense
involving sexual contact with LCpl [B] and guilty of the lesser
offense involving assault consummated by battery. This cuts
against the appellant’s argument on appeal that the panel
improperly responded to the insinuation of LCpl [J]’s testimony.

     Consequently, to the extent that we find error in the
military judge’s ruling, we are convinced that the appellant
suffered no material prejudice.

2. The Appearance of Unlawful Command Influence, Curative
Measures and Resulting Prejudice

       In another assignment of error, the appellant argues that
the Commandant of the Marine Corps (CMC) unlawfully influenced
the tribunal through his focus on the issue of sexual assault
during his “Heritage Brief” tour, his White Letters 2-12 14 and 3-
12 15 and the ensuing media coverage of both. 16 Although the
military judge recognized the appearance of unlawful influence,
he argues she erred by failing to revisit the issue following
the impanelling of the members. Appellant’s Brief of 25 Sep
2013 at 24-26.

      Following a defense pretrial motion to dismiss for
unlawful command influence (UCI), 17 the military judge found the
appearance of UCI sufficiently raised to shift the burden to the
Government. She then concluded that the Government met its
burden of proving beyond a reasonable doubt that the appearance
of UCI would not prejudice the appellant. Record at 167. In
summarizing a RULE FOR COURTS-MARTIAL 802, MANUAL FOR COURTS-MARTIAL,
14
     AE XII at 45-47.
15
     AE XIII at 35.
16
  We recently addressed in detail the CMC’s Heritage Brief, the ensuing media
coverage, and White Letters 2-12 and 3-12 in United States v. Howell, No.
201200264, 2014 CCA LEXIS 321, unpublished op. (N.M.C.Ct.Crim.App. 22 May
2014).
17
     AE XII.

                                     11
UNITED STATES (2012 ed.) conference with counsel wherein she
notified them of her ruling, the military judge explained her
ruling as follows:

          At this point, in the case, prior to members
     being seated, the defense’s motion to dismiss is
     denied. However, without the identified members, the
     court could not make a determination concerning the
     effect of apparent UCI on them. The court has already
     allowed for the expanded questionnaire . . . .
     Additionally, the court intends to allow individual
     voir dire on the topic of the Heritage Brief and any
     related training or command discussions on the
     treatment of sexual assault cases.

          The liberal grant mandate will allow for liberal
     granting of defense challenges for cause on this
     matter.

Record at 167-68. The military judge then offered to provide
White Letter 3-12 to any member unaware of the letter in
addition to any instruction on its content desired by the
parties. Finally, the military judge concluded with the
following:

     Once members are seated, the defense can reevaluate
     and if it feels that actual or apparent UCI will still
     prejudice the proceedings, it may renew its motion.

Id. at 168.

     The appellant now contends that the military judge erred by
“failing to readdress the [defense motion to dismiss] after
members were seated, because her initial ruling was incomplete.”
Appellant’s Brief at 26. 18 The Government responds by arguing

18
  The appellant also contends that the military judge failed to rule on the
issue of actual UCI citing comments made by the senior member of the panel to
the defense counsel following trial. Appellant’s Brief at 30-32; AE LXIX;
Record at 624. We disagree. We find no evidence of any actual UCI simply
because a member of the panel thought it unfair that the Government detailed
more senior judge advocates to the prosecution over more junior attorneys
representing the appellant. Based on our view of these comments, assuming
that they are accurately represented in the record, the senior member applied
his own judgment in deciding the case rather than succumbing to any of the
pressures or influence identified by the defense in its UCI motion at trial.

                                     12
that regardless of what transpired at trial, on appeal the
appellant has failed to meet his burden of providing “some
evidence” that his trial was unfair and that the unlawful
influence was the cause. Government Answer of 7 Jan 2014 at 31-
32 (citing United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F.
1999).

     We review allegations of UCI de novo. United States v.
Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013). At trial, the defense
must provide “some evidence” of unlawful influence, specifically
“facts which, if true, constitute unlawful command influence,
and that the alleged unlawful command influence has a logical
connection to the court-martial, in terms of its potential to
cause unfairness in the proceedings.” Biagase, 50 M.J. at 150
(citations omitted).

     On appeal, however, the appellant carries the burden of
providing some evidence that the proceedings were unfair and the
unlawful influence was the cause. United States v. Ayers, 54
M.J. 85, 95 (C.A.A.F. 2000). The quantum of evidence required
to raise UCI on appeal remains the same; “some evidence” more
than mere allegation or speculation. Id.

     Once the appellant makes this initial showing, whether at
trial or on appeal, the burden shifts to the Government. The
Government may meet this burden “(1) by disproving the predicate
facts on which the allegation of unlawful command influence is
based; (2) by persuading the military judge or the appellate
court that the facts do not constitute unlawful command
influence; (3) if at trial, by producing evidence proving that
the unlawful command influence will not affect the proceedings;
or (4), if on appeal, by persuading the appellant court that the
unlawful command influence had no prejudicial impact on the
court-martial.” Biagase, 50 M.J. at 151. The quantum necessary
remains proof beyond a reasonable doubt. On appeal, we must be
must be convinced beyond a reasonable doubt that the unlawful
command influence did not exist or that it did not affect the
findings or sentence of the court-martial. Id.



Having reviewed the record, we find no evidence that the appellant met his
initial burden of providing “some evidence” of actual UCI either at trial or
on appeal.

                                     13
     The test for the appearance of UCI is objective. “We focus
upon the perception of fairness in the military justice system
as viewed through the eyes of a reasonable member of the
public.” United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F.
2006). An appearance of UCI arises “where an objective,
disinterested observer, fully informed of all the facts and
circumstances, would harbor a significant doubt about the
fairness of the proceeding.” Id. On appeal, we view whether
the “proceedings appeared to be unfair and that the unlawful
command influence was the cause of the appearance of
unfairness.” Ayers, 54 M.J. at 95.

     Assuming arguendo that the appellant satisfied his burden
on appeal of raising the issue of an appearance of unlawful
command influence, we are convinced beyond a reasonable doubt
that any such appearance did not affect the findings or sentence
of the court-martial. Salyer, 72 M.J. at 423.

     At the time of her ruling, the military judge did not have
the benefit of the members’ supplemental questionnaires, voir
dire, or challenges. She ruled that the Government met its
burden of demonstrating beyond a reasonable doubt that the
appearance of UCI would not prejudice the appellant at trial.
However, that ruling was coupled with the additional measures of
supplemental questionnaires, extensive voir dire, liberal
challenges and potential instruction on White Letter 3-12. 19
While the appellant characterizes the ruling as “ambiguous and
confusing”, 20 we conclude that the military judge conditioned her
ruling on those curative measures she identified at the time of
her ruling.

     Based on our de novo review of the record, we conclude that
“an objective, disinterested observer, fully informed of all the
19
  When discussing appropriate questions for voir dire, both IMC and trial
counsel recommended that the military judge not instruct potential members on
3-12 who were unaware of the letter. Record at 184-87. Both parties agreed
the better approach to identifying member’s views on sexual assault and the
Heritage Brief would be better served without reference to 3-12. The
military judge agreed and did not instruct any member on the contents of
White Letter 3-12. Of the five members who were impaneled, only one
indicated on his supplemental questionnaire that he was unaware of 3-12. AE
XXIV at 8. But he also indicated he had not attended or heard the Heritage
Brief and had not read White Letter 2-12. Id.
20
     Appellant’s Brief at 32.

                                     14
facts and circumstances, would [not] harbor a significant doubt
about the fairness of the proceeding.” Lewis, 63 M.J. at 415.
The members provided comprehensive answers on the issues of the
CMC’s Heritage Brief, the ensuing media attention, sexual
assault, homosexuality, and the military’s repeal of DADT. AE
XXIV; Record at 232-77. Furthermore, the military judge
conducted comprehensive general voir dire addressing the topics
of the Heritage Brief, sexual assault prevention and related
issues. Record at 215-18. Each member was questioned again in
more depth during individual voir dire. Id. at 232-76. The
military judge granted all three defense challenges for cause,
citing the liberal grant mandate on two, despite the fact that
the defense raised no challenge against any member for their
responses concerning the Heritage Brief. Id. at 277-79.

     Once members were impaneled, the defense opted not to renew
its UCI motion despite the military judge’s earlier invitation
to do so. The responses from those impaneled, whether from the
supplemental questionnaires, the military judge’s general voir
dire, or from individual voir dire, give no appearance of
unlawful influence. Last, the member’s partial acquittal of one
of the three charged offenses for wrongful sexual contact cuts
against the appellant’s argument that the Heritage Brief and its
focus on sexual assault prevention unlawfully influenced the
panel.

     Consequently, we conclude beyond a reasonable doubt that
“the disinterested public would now believe that [the appellant]
received a trial free from the effects of unlawful command
influence.” Lewis, 63 M.J. at 415.

3. Remaining Assignments of Error

     We have reviewed the appellant’ remaining assignments of
error and, after reviewing the record and applying the
appropriate standard of review, conclude that they are without
merit. United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992).




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                         Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.

     Judge McFARLANE and Judge McDONALD concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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