Petition for Writ of Certiorari — Richard M. Camacho, Petitioner v. United States

APPENDIX A

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

v.

Richard M. Camacho,

Appellant

USCA Dkt. No. 19-0157/AR

Crim.App. No. 20140495

ORDER

On consideration of Appellant’s petition for

grant of review of the decision of the United States

Army Court of Criminal Appeals, we note that the

Court of Criminal Appeals set aside the findings of

guilty for Specifications 1 and 5 of Charge III and

dismissed those specifications. Because these were the

only two guilty findings under that charge, the Court

of Criminal Appeals should have set aside the guilty

finding to Charge III as well but failed to do so.

Accordingly, it is, by the Court, this 23rd day of May,

2019,

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ORDERED:

That said petition is hereby granted. The

finding of guilty as to Charge III is set aside, and that

charge is dismissed. The decision of the United States

Army Court of Criminal Appeals is affirmed in all

other respects.

For the Court,

/s/ Joseph R. Perlak

Clerk of the Court

cc:

The Judge Advocate General of the Army

Appellate Defense Counsel (Maher)

Appellate Government Counsel (Williams)

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APPENDIX B

UNITED STATES ARMY COURT

OF CRIMINAL APPEALS

Before

BURTON, HAGLER, and SCHASBERGER

Appellate Military Judges

UNITED STATES,

Appellee

v.

Captain RICHARD M. CAMACHO

United States Army,

Appellant

ARMY 20140495

Headquarters, 82d Airborne Division

Deidra J. Fleming, Military Judge

Colonel John N. Ohlweiler, Staff Judge Advocate

For Appellant: Captain Daniel C. Kim, JA; John N.

Maher, Esquire (on brief);

Captain Steven J. Dray, JA; John N. Maher, Esquire

(on reply brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA;

Major Austin L. Fenwick, JA; Captain Joshua

Banister, JA (on brief).

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30 November 2018

MEMORANDUM OPINION

This opinion is issued as an unpublished

opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

In this case, we explore a melange of unlawful

command influence claims, encompassed in appellant's

first two assignments of error. These claims involve

statements by politicians and senior leaders

concerning sexual assault in the armed forces, the

Sexual Harassment/Assault Response and Prevention

(SHARP) program, and a meeting by the convening

authority and the victim in the case after referral of

charges. We find, under the facts of this case, that

neither unlawful command influence nor unlawful

influence tainted these proceedings. We also address

appellant's assertion that the evidence is legally and

factually insufficient to support the findings of guilty

in the case; on this issue we provide appellant some

relief by dismissing the kidnapping and indecent

language specifications.1

1

After due consideration, we find the remaining seven

assignments of error lack merit.

One of these assigned errors claims appellant's trial defense

counsel were ineffective in failing to show the members a

videotaped interview of the victim, Captain (CPT) AA, by the

Army Criminal Investigation Command (CID). During this

approximately ninety-minute interview, CPT AA stated "there

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was no sexual force, or anything." Appellant also asserts counsel

were deficient in failing to request or obtain the metadata for the

photographs of CPT AA' s injuries admitted at trial or use that

information to verify the timeline of events reported by CPT AA.

"In order to prevail on a claim of ineffective assistance of counsel,

an appellant must demonstrate both (1) that his counsel's

performance was deficient, and (2) that this deficiency resulted in

prejudice." United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F.

2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

"When challenging the performance of counsel, the defense bears

the burden of establishing the truth of the factual allegations that

would provide the basis for finding deficient performance." United

States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007); (citing United

States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).

Appellant's claims are not supported by any evidence in the record

of trial (see Rule for Court-Martial (R.C.M.) 1103(b)(2)(D)), or

properly admitted on the appellate record. The recording of the

CID interview was neither marked nor admitted at trial or during

the post-trial Article 39a, UCMJ, session. A ten-second excerpt

was contained in the appellant's R.C.M. 1105 matters, but that is

not the record before us on review. Likewise, the metadata for the

photographs was not marked or admitted on the record. Finally,

appellant's claims are not supported by affidavits or sworn

statements. Without evidence before us in a manner we can

consider, we are left with appellant's naked assertions of trial

defense counsel's deficiencies. In a claim of ineffective assistance

of counsel, the burden lays solely on appellant to prove the claim.

When the claim relies entirely on evidence not included as part of

the authenticated record, failure to meet the burden may be fatal.

We therefore find appellant has not met his burden in

establishing deficient performance by his trial defense counsel.

Even if we were to consider the excerpt of the CID interview in

appellant's R.C.M. 1105 submission, we would still reject

appellant's ineffective assistance of counsel claim. Simply put, this

short clip extracted from the interview is not contextualized in

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A panel of officers sitting as a general

court-martial, convicted appellant contrary to his

pleas, of one specification of aggravated sexual contact

and one specification of abusive sexual contact, seven

specifications of assault, one specification of

kidnapping, and one specification of indecent language

in violation of Articles 120, 128, and 134, Uniform

Code of Military Justice, 10 U.S.C. §§ 920, 928, 934

(2012) [UCMJ]. The panel acquitted appellant of one

specification of aggravated sexual contact, two

specifications of aggravated assault, one specification

of simple assault, and three specifications of

communicating a threat, charged under Articles 120,

128 and 134, UCMJ. The panel sentenced appellant to

a dismissal, confinement for two years, and forfeiture

of all pay and allowances. The convening authority

approved the sentence as adjudged.

BACKGROUND

Appellant and CPT AA started dating while

they were cadets at the United States Military

Academy (USMA). They married after both graduated

from flight school in 2009.

In 2011, CPT AA informed appellant that she

wanted a divorce. Appellant opposed dissolution of

their marriage. Later in the year, CPT AA and

appellant both deployed to Afghanistan, but to

different forward operating bases (FOB). While

relation to the entire interview. Appellant has not shown how this

clip;in context, would have resulted in a different outcome at trial.

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deployed, CPT AA engaged in an extra marital affair

with a noncommissioned officer (NCO).

Upon redeployment in September 2012, CPT AA

continued to push for a divorce. On or about 8

November 2012, during a verbal disagreement at their

residence, appellant threw a set of keys, hitting CPT

AA in the back. Captain AA called her friend CPT YD.

When CPT YD arrived at the residence, CPT AA was

outside waiting for her. On the drive to work, CPT AA

told CPT YD about the incident involving the keys.

Once they arrived at work, CPT YD suggested that

they take photographs of CPT AA's back to document

the injury and so that CPT AA could see the injury to

her back. This incident was not reported to law

enforcement or the military chain of command, as CPT

AA did not want to negatively impact appellant's

career.

On 18 November 2012, CPT AA again told

appellant she wanted a divorce.

On 19 November 2012, the NCO's wife reported

the extramarital affair to the NCO's chain of

command. After receiving a text from the NCO, CPT

AA told appellant about the affair while they were

having lunch at a local restaurant. Appellant stormed

out of the restaurant, got in his car, threw CPT AA' s

purse out of the window, and began to drive out of the

parking lot. Appellant then backed up and told CPT

AA to get into the car. As they drove back to Fort

Bragg, appellant was visibly angry and drove

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erratically. He called a friend, JS,2 and requested that

he accompany them to the trial defense service (TDS)

office.

When they arrived at Fort Bragg, appellant

picked up JS. As they drove to TDS, CPT AA was

crying and appellant was very upset. At TDS, JS told

appellant he should remain in the car because

appellant was still very upset, loud, and verbally

abusive. Captain AA went in to meet with an attorney.

When she was done, they all returned to drop JS off at

the company area. Before leaving the car, JS told

appellant and CPT AA they should not be together

that night.

Appellant and CPT AA proceeded to their

residence. Once there, appellant became even more

agitated, throwing CPT AA's belongings from the car.

He initially refused to let CPT AA into the residence,

but then pulled her inside. Once inside, he demanded

that CPT AA write down all of her passwords for her

computer, bank accounts, and emails. Appellant also

took CPT AA's phone.

Appellant called CPT YD on speaker phone and

demanded she come over to pick up a gift that had

been purchased for her son. Captain YD and her

husband, CPT DD, came over about two hours later.

They witnessed appellant screaming at CPT AA. They

testified that appellant referred to CPT AA as "a filthy

2

JS was previously CPT JS. He knew both appellant and CPT AA

from USMA.

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whore, a cunt, a slut," "a fucking whore," and "a

fucking bitch." Captain YD attempted to calm

appellant down. When CPT YD's attempts failed, she

tried to get CPT AA to leave with her. Captain AA

shook her head no and stated, "No, I can't leave," "I

can't go," and "I don't want to go." Appellant responded

by informing CPTs YD and DD that they were

trespassing and needed to get out of his house.

After CPT YD and DD left the residence,

appellant's rage continued to grow. At different times

that night, appellant struck CPT AA with his hands on

various parts of her body, to include her legs, thighs,

buttocks, torso, ribs, chest, eye, and head. At some

point, he threw an ottoman and a pillow at her,

touched her buttocks and genitalia against her will,

and forced her to touch his penis. Appellant told CPT

AA that if she left, he would harm himself.

Throughout the night CPT YD called CPT AA

numerous times. Eventually appellant answered the

phone and stated, "stop fucking calling." Appellant did

allow CPT YD to speak to CPT AA via speaker phone,

and CPT AA stated that she was okay.

When appellant woke up the next morning, he

resumed hitting CPT AA. Upon arriving to her unit

later that morning, CPT AA told CPT YD about the

events of the previous evening and that morning.

Captain YD photographed CPT AA's numerous

injuries. Against CPT AA's wishes, CPTs YD and DD

reported these injuries to the chain of command and a

protective order was implemented.

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A commander's inquiry relating to adultery and

fraternization had already been initiated in reference

to CPT AA and the NCO.3

LAW AND DISCUSSION

A. Unlawful Command Influence

Appellant's UCI claims fall broadly into two

categories. First, appellant avers Army officials,

fearful of the perception of being weak on sexual

assault, deprived appellant of protections guaranteed

by the Fifth and Sixth Amendments to the U.S.

Constitution. Second, appellant asserts the Army's

application of the SHARP program in appellant's case

constituted UCI This includes a general assertion that

the convening authority's favorable disposition of an

adverse action against the victim, CPT AA, was proof

of UCI. In these broad claims, appellant largely

reasserts the same UCI arguments litigated in three

motions at various stages at the trial level.

We review allegations of unlawful command

influence de novo. United States v. Salyer, 72 M.J. 415,

423 (C.A.A.F. 2013) (citations omitted).

1. Motions at the Trial Level

We review the military judge's findings of fact

3

Captain AA ultimately received a locally-filed General Officer

Memorandum of Reprimand (GOMOR) and a negative officer

evaluation report for this inappropriate relationship.

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made in ruling on a UCI motion under a clearly

erroneous standard. United States v. Villareal, 52 M.J.

27, 30 (C.A.A.F. 1999). Where a "military judge made

detailed findings of fact . . . and these findings are

clearly supported by the record," we adopt them in our

analysis. Id. With that said, we briefly examine the

three UCI motions and rulings at trial.

a. Political Leaders, Senior Military Officials,

and DoD Policy

During an Article 39a, UCMJ, session on 3 April

2014, appellant claimed statements in the media by

the President, Members of Congress, and senior Army

leadership concerning sexual assault in the military,

combined with the Department of Defense (DoD)

SHARP policy and training, constituted apparent UCI

and tainted the accusatory stage of the proceedings. In

support of the allegations, defense counsel introduced

statements by various senior leaders and politicians

about sexual assault in the military. The defense also

introduced slides from various SHARP training

presentations. Defense counsel averred that these

statements put pressure on the battalion commander,

Lieutenant Colonel (LTC) BC, to recommend

proceeding to a court-martial on charges preferred

after a year-long investigation.

During the pretrial motion, LTC BC testified

that he did not feel any pressure from his superiors to

take a particular action in appellant's case, nor did he

believe that there was a climate that all sexual

assaults had to be charged. No further evidence was

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presented.4

After considering the evidence presented, to

include LTC BC's testimony, the military judge found

defense counsel failed to present evidence showing

that actual or apparent UCI impacted the proceedings.

Specific to her finding, the military judge found LTC

BC, in acting on the charges, did not receive pressure

from his superiors to take a particular action in this

case. Noting defense counsel had conceded no actual

UCI in the case, the military judge concluded there

was no evidence that publicity concerning sexual

assault in the military or sexual assault training

impacted the "preferral, pretrial investigation, or

referral" in the case. Specifically, the military judge

found defense had failed to demonstrate a logical

connection or nexus between this publicity and

appellant's case in terms of potential to cause

unfairness. The military judge further concluded the

actions of LTC BC in directing additional

investigations into the case and, later, recommending

the case proceed to trial, were not the product of actual

or apparent UCI, but rather the "permissible actions

of a Battalion Commander exercising his authority to

appoint a commander's inquiry and to recommend trial

by court-martial."

4

Though not raised by the appellant, we note that appellant did

voir dire the panel members about their exposure to SHARP

training as well as comments from senior leaders and politicians.

None of the panel members felt pressure to find appellant guilty.

One panel member was challenged by appellant and excused on

an unrelated matter.

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b. Claims of a Former Chief of Justice

During an Article 39a, UCMJ, session on 6 June

2013, appellant raised a supplemental motion to

dismiss for UCI, this time asserting that the Deputy

Staff Judge Advocate (DSJA) commanded subordinates

to recommend preferral of charges for all allegations of

sexual assault, thus preventing the Chief of Military

Justice (COJ), Brigade Judge Advocate and Trial

Counsel from making independent and informed

appraisals and recommendations to the commanders

of the 82d Combat Aviation Brigade. In support of this

allegation Major Erik Burris,5 the former COJ testified

that he was told by the Staff Judge Advocate (SJA)

and the DSJA that if there is probable cause in a

sexual assault case, then charges must be preferred.

Major Burris further testified that he felt pressure to

charge sexual assault cases and that he informed his

subordinates of this requirement to prefer all

allegations of sexual assault.

In response to MAJ Burris, the government

5

At the time of appellant's court-martial, MAJ Burris had been

relieved of his duties as the COJ and was pending court-martial

for charges similar to those faced by appellant. Major Burris was

subsequently convicted of disobeying a superior commissioned

officer as well as rape, sodomy, and assault consummated by

battery of his wife. His case is pending appellate review. See

United States v. Burris, ARMY 20150047, 2017 CCA LEXIS 315

(Army Ct. Crim. App. 8 May 2017), reconsidered 2017 CCA LEXIS

507 (Army Ct. Crim. App. 28 Jul. 2017); vacated and remanded,

78 M.J. 56 (C.A.A.F. 2018). We did not consider any matters from

the case of U.S. v. Burris in deciding appellant's case.

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called the then current COJ, CPT RL, who testified

that he was a senior trial counsel when MAJ Burris

was the COJ. He attended most meetings with MAJ

Burris and MAJ Burris never informed him of any

policy or guidance on the disposition of sexual assault,

cases. According to CPT RL, neither the SJA nor the

DSJA provided such guidance to him. Similarly, CPT

RL never informed his subordinate trial counsel of

such a policy. More importantly, CPT RL stated that

he did not feel any pressure to pursue sexual assault

cases and that the trial counsel assigned to appellant's

case were not assigned to the office when MAJ Burris

was the COJ.

In denying this motion, the military judge noted,

"Based on the Court's ability to observe these two

witnesses, the Court found CPT [RL's] testimony

credible as opposed to MAJ Burris' testimony." The

military judge found MAJ Burris, in his testimony, did

not "remember exactly how he shared the [DSJA's]

guidance, to whom he shared the guidance, at what

location he shared the guidance, and when he shared

the guidance." Even accepting everything MAJ Burris

stated at face value, the military judge concluded trial

defense counsel failed to produce some evidence of

actual UCI and that apparent UCI did not affect the

proceedings ..

c. The Convening Authority met with Captain AA

After the trial adjourned, appellant hired a

civilian attorney to represent him in the post-trial

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stages.6 On 3 April 2015, appellant's civilian defense

counsel requested a post-trial article Article 39(a),

UCMJ, session to address several issues, to include

UCI. The military judge ruled that a post-trial hearing

would be held to address the appellant's allegations

that possible UCI occurred through email exchanges,

various oral communications, or in-person meetings

between the SJA, CPT AA, CPT AA's civilian attorney

(Mr. TC), the Special Victim's Counsel (SVC), and the

Commanding General, who was also the convening

authority in appellant's case.7 Appellant asserted,

among other things, that preferential treatment

afforded by the convening authority to CPT AA in

addressing her misconduct was yet more proof of UCI.

In four Article 39a, UCMJ, sessions held over

seven months from October 2015 to May 2016, the

military judge examined evidence submitted by the

parties and heard from ten witnesses, to include the

convening authority.8

6

Appellant released his counsel who had represented him during

the trial on the merits. The civilian counsel, Mr. Maher, also

represents appellant before this court.

7

Appellant also filed a motion to dismiss, or in the alternative, for

a new trial. This request was properly denied by the military

judge.

8

We applaud the military judge for conducting these post-trial

sessions in order to address potential issues before the case was

forwarded to this court. Not only does this practice serve the

interests of judicial economy, it allows the military judge most

familiar with the case to address the issues.

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During his testimony, the convening authority

was not asked about his decision to refer the charges

in appellant's case; instead he was asked about his

decision to locally file a General Officer Memorandum

of Reprimand (GOMOR) CPT AA received for her

inappropriate relationship with the male NCO. The

convening authority's response to a congressional

inquiry filed by appellant was submitted for the

post-trial Article 39a, UCMJ, session, which stated,

"Regarding CPT Camacho's concern that UCI played

a role in this case, I can assure you that I considered

only the facts of the case when I made my decision to

refer it to a General Court-Martial."

The military judge also considered evidence that

between 8 November 2013 through on or about 14

April 2014, Mr. TC began email communication with

the SJA, DSJA, TC, SVC, and Special Victim

Prosecutor (SVP). These emails included disparaging

remarks about appellant and comments such as "I do

see some concerns reprimanding a domestic violence

victim." In their testimony, the SJA and DSJA

acknowledged receipt of the emails from Mr. TC, but

both denied ever discussing or showing the emails to

the convening authority.

Based on the evidence and testimony, the

military judge made several factual findings. First, the

military judge found the charges were preferred

against appellant on 6 November 2013. Second, on 11

February 2014, the convening authority referred the

charges in appellant's case to a general court-martial

based on the Article 32, UCMJ, investigation and the

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Investigating Officer's recommendation. Third, on 31

March 2014, the following people met with the

convening authority: the SJA, CPT AA, Mr. TC, the

SVC, and COL MM (all of these individuals, except

CPT AA, testified at the post-trial Article 39a, UCMJ,

session).9 The purpose of this meeting was to discuss

the filing of the GOMOR that CPT AA received on 6

November 2013 for adultery and fraternization. There

was no discussion during this meeting concerning

appellant's case.

The military judge considered all of the

testimony and found defense counsel had failed to

establish a logical connection between appellant's

various claims of UCI based upon CPT AA's meeting

with the convening authority and the alleged

preferential treatment received by CPT AA from the

convening authority and others in addressing her

fraternization and adultery with the male NCO.

Specifically, the military judge found no linkage

between Mr. TC's correspondence with the SJA and

the convening authority's decision to refer charges

9

Defense counsel were not notified about this meeting until after

the trial adjourned. In the post-trial Article 39a, UCMJ, session,

appellant asserted the government's failure to notify defense of

this meeting and provide related correspondence between CPT

AA's attorney and the government constituted a violation of Rule

for Court-Martial 701(a)(6) and Brady v. Maryland, 373 U.S. 83

(1963). The military judge-correctly, in our view-determined that

even if the government's failure to provide this information

violated R.C.M. 701(a)(6) or Brady, the defense failed to establish

reasonable probability that there would have been a different

result at trial. See Kyles v. Whitley, 514 U.S. 419 (1995).

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against appellant to trial.

We find the military judge's findings of fact in

each of these motions were not clearly erroneous and

we agree with the military judge's resolution in each

instance.

2. Appellant's Claims on Appeal

Before us, appellant makes several arguments

as to why UCI pervaded this case. We need not

address many of these allegations as we find the

military judge correctly decided these UCI claims each

time they were raised. Nonetheless, some of

appellant's arguments warrant a brief discussion, but

no relief.

a. Unlawful Command Influence

As an overall claim, appellant asserts CPT AA

was vested with a special victim status that, in various

ways, unfairly tilted the proceedings against appellant.

This status allowed CPT AA to change duty stations to

Fort Leonard Wood, where she was awarded a slot in

the Engineer Captain's Career Course (ECCC), and

effectively allowed her to escape punishment.

Appellant asserts the application of the SHARP

program to CPT AA constituted UCI and prejudiced

his trial. We disagree.

Article 37(a), UCMJ, states in relevant part: "No

person subject to this chapter may attempt to coerce or

. . . influence the action of a court-martial or any other

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military tribunal or any member thereof, in reaching

the findings or sentence in any case ... . " "Even if there

was no actual unlawful command influence, there may

be a question whether the influence of command

placed an intolerable strain on public perception of the

military justice system." United States v. Lewis, 63

M.J. 405, 415 (C.A.A.F. 2006) (quoting United States v.

Stoneman, 57 M.J. 35, 42-43 (C.A.A.F. 2002)) (internal

quotation marks omitted). "[T]he appearance of

unlawful command influence will exist where an

objective, disinterested observer, fully informed of all

the facts and circumstances, would harbor a

significant doubt about the fairness of the proceeding."

Lewis, 63 M.J. at 415.

On appeal, appellant bears the initial burden of

raising unlawful command influence. "Appellant must

show: (1) facts, which if true, constitute unlawful

command influence; (2) that the proceedings were

unfair; and (3) that the unlawful command influence

was the cause of the unfairness." Salyer, 72 M.J. at

423 (citing United States v. Richter, 51 M.J. 213, 224

(C.A.A.F. 1999)) (quoting United States v. Biagase, 50

M.J. 143, 150 (C.A.A.F. 1999)). "Thus, the initial

burden of showing potential unlawful command

influence is low, but is more than mere allegation or

speculation." Id. (citing Stoneman, 57 M.J. at 41). "The

quantum of evidence required to raise unlawful

command influence is "'some evidence."' Id. (citing

Stoneman, 57 M.J. at 41) (quoting Biagase, 50 M.J. at

150). Our superior court has further held that

"prejudice is not presumed until the defense produces

evidence of proximate causation between the acts

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constituting [UCI] and the outcome of the

court-martial." Biagase, 50 M.J. at 150 (citing United

States v. Reynolds, 40 M.J. 198, 202 (C.M.A. 1994)).

Once an appellant has presented some evidence

of UCI, the burden shifts to the government to

demonstrate to this court beyond a reasonable doubt

that: "(l) the predicate facts do not exist; (2) the facts

do not constitute unlawful command influence; or (3)

the unlawful command influence did not affect the

findings or sentence." Salyer, 72 M.J. at 423 (citing

Biagase, 50 M.J. at 151).

Simply because the Army has a SHARP

program and instituted training does not constitute

UCI Appellant fails to demonstrate any nexus between

the SHARP program, generally, and the any issue of

consequence that occurred in his trial. Further, no

evidence was presented, in particular, to show that

anyone in a position of authority over appellant's case

was influenced by the Army's SHARP program,

training they may have attended, or comments made

by senior leaders and/or politicians. There must be

more than command influence "in the air" to justify

action by an appellate court. United States v. Allen, 33

MS 209, 212 (C.M.A. 1991) (citations omitted).

Appellant's claims, taken in totality, do not pass this

measure, particularly given that the evidence and

testimony presented during the three UCI motion

hearings compellingly demonstrated that the

commanders who recommended action or took action

in appellant's case were not improperly influenced in

making their decisions.

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Overall, we find appellant has failed to present

"some evidence" of actual or apparent unlawful

command influence on appellant's proceedings. Even

if we had found appellant met this initial low burden

of proof, we are convinced beyond a reasonable doubt

that no unlawful command influence affected the

findings or sentence.

b. Unlawful Influence

As another overarching theme, appellant claims

the convening authority's meeting with CPT AA and

Mr. TC on 31 March 2014, and the lack of any

meaningful punishment for CPT AA for fraternization

and adultery, somehow injected unlawful command

influence into appellant's trial. Although we view this

not as a UCI claim, but rather an unlawful influence

claim, we still resolve this issue against appellant.

We are mindful that, while most claims under

Article 37(a), UCMJ, allege the unlawful influence was

committed by someone wearing the mantle of

command authority, that is not a prerequisite to

establishing a claim that the proceedings were

unlawfully influenced by a member subject to the

UCMJ. Both unlawful command influence and

unlawful influence are proscribed by Article 37,

UCMJ, but the latter does not require the act be done

with the mantle of command authority. Actual

unlawful influence occurs "when there is an improper

manipulation of the criminal justice process which

negatively affects the fair handling and/or disposition

of a case." United States v. Barry, 78 M.J. 70, 77

21a

(C.A.A.F. 2018) (quoting United States v. Boyce, 76

M.J. 242, 247 (C.A.A.F. 2017). The test for unlawful

influence is the same as the test for unlawful

command influence, including the requirement, if

appellant meets his burden, that the government

prove any improper influence was harmless beyond a

reasonable doubt. Barry, 78 M.J. at 77 n.4.

First, appellant tries to reason that CPT AA's

lack of meaningful punishment for fraternization and

adultery are proof of the unlawful influence pervading

his trial. Again, we see no nexus between the

resolution of CPT AA's GOMOR, her move to Fort

Leonard Wood, or attendance at the ECCC and the

results of appellant's trial. As explained by the

convening authority, CPT AA's GOMOR was

locally-filed because the issuance of a negative Officer

Evaluation Report would have the same detrimental

effect on her career. CPT AA's permanent change of

station was something permitted by DoD policy, which

also had no nexus to the charges against appellant.

Finally, CPT AA's attendance at ECCC was authorized

by a completely different command, not the convening

authority.

Second, we find no evidence of unlawful

influence exerted by Mr. TC or CPT AA simply because

they requested and were granted a routine meeting

with the convening authority to discuss a GOMOR

filing determination. Appellant's court-martial was not

a topic raised during the meeting. While the record is

replete with messages and comments by Mr. TC to

members of the SJA's staff that disparaged appellant,

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none of these communications were shared with the

convening authority. Finally, and more importantly,

this meeting occurred well after the convening

authority referred charges. Unlawful influence did not

occur, nor was there an appearance of unlawful

influence, in the referral stage of appellant's trial. A

meeting between the convening authority and CPT AA

to discuss the filing of a GOMOR did not create actual

or apparent unlawful influence in decisions previously

made by the convening authority.

Overall, as with UCI, we find appellant has

failed to present "some evidence" of actual or apparent

unlawful influence on appellant's proceedings. Even if

we had found appellant met this initial low burden of

proof, we are again convinced beyond a reasonable

doubt that any of the alleged unlawful influence did

not affect the findings or sentence.

B. Factual and Legal Sufficiency

Article 66(c), UCMJ, establishes our statutory

duty to review a record of trial for legal and factual

sufficiency de novo. United States v. Walters, 58 M.J.

391, 395 (C.A.A.F. 2003). Under Article 66(c), UCMJ,

we may affirm only such findings of guilty that we find

correct in law and fact and determine, based on the

entire record, should be affirmed. In weighing factual

sufficiency, we take "a fresh, impartial look at the

evidence," applying "neither a presumption of

innocence nor a presumption of guilt." United States v.

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). "[A]fter

weighing the evidence in the record of trial and

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making allowances for not having personally observed

the witnesses, [we must be] convinced of the

[appellant's] guilt beyond a reasonable doubt." United

States v. Turner, 25 M.J. 324, 325 (C.M.A.· 1987). The

evidence must leave "no fair and reasonable hypothesis

other than appellant's guilt." United States v. Billings,

58 M.J. 861, 869 (Army Ct. Crim. App. 2003) (citation

omitted).

1. Kidnapping

As charged in Specification 1 of Charge III, the

Article 134, UCMJ offense of kidnapping required,

inter alia, proof beyond a reasonable doubt that

appellant held CPT AA against her will. See Manual

for Courts-Martial, United States (2012 ed.) [MCM], pt.

IV, ¶ 92.b.(2). We find the evidence insufficient on this

element.

There is no dispute that appellant and CPT AA

were in their marital home on 19 November 2012.

However, we cannot find beyond a reasonable doubt

that appellant held CPT AA against her will. In

making this determination we considered that an

involuntary detention "may result from force, mental

or physical coercion, or from other means, including

false representations." MCM, pt. IV, ¶ 92.c.(3) .. We

find none of these modes of detention here. In making

this assessment, we have also factored in the

"availability or nonavailablity" to CPT AA of a means

of exit or escape and evidence of threats or force ( or

lack thereof). See id. We conclude that CPT AA had at

least three opportunities to leave; twice when CPT YD

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and DD requested she leave; and then when appellant

was asleep or unconscious. Additionally, CPT AA was

not in a remote location where help could not be

obtained. Instead she was in her marital home in a

neighborhood where she knew several of her

neighbors, to include her closest neighbor whom she

met at USMA. The only threat appellant made was to

injure himself, which under the unique circumstances

of this case, was not sufficient to prove appellant held

CPT AA against her will. Therefore, we find the

evidence factually insufficient for the offense of

kidnapping.

2. Indecent Language

We also find the evidence supporting appellant's

conviction for indecent language factually insufficient.

A conviction for the delivery of indecent

language can be upheld when the language used is

"grossly offensive to modesty, decency, or propriety, or

shocks the moral sense because of its vulgar, filthy, or

disgusting nature, or its tendency to incite lustful

thought." MCM, pt. IV, ¶ 89.c.; see also United States

v. Green, 68 M.J. 266, 269 (C.A.A.F. 2010); United

States v. Negron, 60 M.J. 136, 142 (C.A.A.F. 2004 ). In

a nutshell, the Manual presents two separate

definitions by which to measure speech that,

depending on the "context in which it is spoken" may

be a crime. Negron, 60 M.J. at 144; see also United

States v. Jackson, NMCCA 20090041, 2009 CCA

LEXIS 298, at *7-*8 (N.M. Ct. Crim. App. 25 Aug.

2009).

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The opprobrium appellant spewed at his

unfaithful spouse "was clearly calculated or intended

to express his rage, not any sexual desire." United

States v. Brinson, 49 M.J. 360, 364 (C.A.A.F. 1998).

Put another way, there was clearly no "libidinous

message" conveyed. Id. at 368 (Cox, C.J ., concurring).

Examining the words used by the cuckolded

appellant to describe his wife, in context, we do not

find them to meet the definition of "indecent

language," nor to be service discrediting or prejudicial

to good order and discipline. Appellant's abusive

language was directed at a fellow captain (his wife) at

an off-post private residence shortly after discovering

CPT AA had an adulterous affair with a

noncommissioned officer while both she and appellant

were deployed. The victim of appellant's tirade was

neither a minor, see, e.g., United States v. Avery,

ARMY 20140202, 2017 CCA LEXIS 739 (Army Ct.

Crim. App. 30 Nov. 2017) (unpub.), nor a subordinate,

see, e.g., United States v. Caver, 41 M.J. 556 (N.M. Ct.

Crim. App. 1994). The presence of two other officers of

equal rank during appellant's profanity-laced tirade is

of no moment here. In a different setting, it can be

gainsaid that appellant's outrageous description of a

fellow human being would be so grossly offensive to

decency as to meet all elements of the offense of

indecent language. However, under the facts of this

case, we are unable to affirm appellant's conviction

and accordingly set aside and dismiss Specification 5

of Charge III as factually insufficient.

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CONCLUSION

The findings of guilty for Specifications 1 and 5

of Charge III are set aside and dismissed. The

remaining findings of guilty are AFFIRMED.

We are able to reassess the sentence on the

basis of the errors noted and do so after conducting a

thorough analysis of the totality of circumstances

presented by appellant's case and in accordance with

the principles articulated by our superior court in

United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and

United States v. Winckelmann, 73 M.J. 11, 15-16

(C.A.A.F. 2013).

In evaluating the Winckelmann factors, we first

find a significant change in the penalty landscape, as

the maximum period of confinement dropped from life

without the possibility of parole to twenty-nine years

and six months. However, this one factor is not

dispositive. Id. at 15. Second, we note that appellant

elected to be tried by members, a factor which can

weigh against a sentence reassessment. However, "this

factor could become more relevant where charges

address service custom, service discrediting conduct, or

conduct unbecoming." Id. at 16. The remaining

charges, in our view, truly capture the gravamen of

appellant's offenses. That is, the charges in this case

primarily focused on appellant's brutal assaults,

aggravated sexual contact, and abusive sexual contact

with his wife. We have extensive experience and

familiarity with these types of offenses as they are the

subject of many of the cases we review, and can

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reliably determine that appellant would have received

a dismissal, confinement for two years and forfeiture

of all pay and allowances even without the dismissed

specifications. We therefore AFFIRM the sentence as

adjudged.

All rights, privileges, and property, of which

appellant has been deprived by virtue of those portions

of the findings set aside by our decision, are ordered

restored.

Judge HAGLER and Judge SCHASBERGER

concur.

FOR THE COURT:

/s/

JOHN P. TAITT

Chief Deputy Clerk of Court

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