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## U NITED 

## S TATES 

## N AVY



## – M ARINE 

## C ORPS 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_________________________ No. 201 300311

_________________________ 

### UNITED STATES OF AMERICA Appellee

v. 

### Pedro M. BESS Hospital Corpsman Second Class ( E

- 5 ), U.S. Navy Appellant

_______________________ __ Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge: Commander Heather Partridge
, JAGC, USN

. For Appellant: Lieutenant Commander Jacob E. Meusch
, JAGC, USN

. For Appellee: Captain Brian L. Farrell, U.S. Marine Corps ; Capta in Sean M. Monks, U.S. Marine Corps

.

_________________________ Decided 4 October 201 8

_________________________ Before W OODARD
, FULTON
, and J ONES
, Appellate Military Judges

_________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Practice and Procedure 18.2.

_________________________ JONES
, Senior Judge : This case is before us for a second time. On 8 March 2013
, the appellant was convicted of two specifications of attempting to commit an indecent act and four specifications of committing indecent acts, in violation of Articles 80United States v. Bess , No. 201 300311

2 and 120, ( UCMJ )
, 10 U.S.C. §§ 880 and 920 (2007). 1 On 28 October 2014
, we affirmed the findings and sentence. 2 On 6 January 2016, the Court of Appeals f or the Armed Forces (CAAF) held that the military judge erred by denying the appellant an opportunity to impeach evidence requested by the members during deliberations. The CAAF set aside the findings and sentence and remanded the case with authorization f or a rehearing. United States v. Bess
, 75 M.J. 70 (C.A.A.F. 2016). The results of that rehearing are before us now. On remand, a general court

- martial consisting of members with enlisted representation convicted the appellant
, contrary to his pleas, of two s pecification s of in decent acts in violation of Article 1 20 , UCMJ

. 3 The convening authority (CA) approved the adjudged sentence of confinement for one year, reduction to pay grade E

- 3 , and a reprimand

. The appellant raise s ten assignments of error (AOEs)
, which we have re

ordered : ( 1) the appellant’s convictions for indecent acts are legally and factually insufficient; (2) the government violated his due process rights in failing to notify him that he was being held on active duty beyond the end of his act ive duty service obligation ; ( 3 ) the military judge erred by denying his request for the production of a witness; ( 4 ) the military judge abused her discretion by denying production of a statistical breakdown of the racial make

- up of the population within t he CA’s pool of potential members; ( 5 ) the military judge violated the Equal Protection Clause of the Constitution by failing to require a race

- neutral reason for the CA’s exclusion of black members from the appellant’s venire ; ( 6 ) the CA engaged in unlawf ul command influence (UCI) by excluding black members from the venire ; ( 7 ) the military judge abused her discretion by denying the appellant’s motion for a mistrial ; ( 8 ) the government illegally punished the appellant by taking his uniforms after his first trial; ( 9 ) the panel violated his due process rights because itconsisted of less than six members, and their verdict did not require unanimity; and (10) the guilty verdict should be set aside and dismissed under the cumulative error doctrine.

1 United States v. Bess , No. 2013 00311, 2014 CCA LEXIS 803 (N

- M

. Ct. Crim. App. 28 Oct 2014) (unpub. op.)

.

2 Id.

3 The appellant was acquitted of two other specifications involving similar crimes

on separate alleged victims : one specification of Article 80, UCMJ, 10 U.S.C. § 880 (2007), a nd one specification of Article 120, UCMJ, 10 U.S.C. § 920 (2007).United States v. Bess , No. 201 300311

3 We have co nsidered AOEs nine and ten , and find them to be without merit

. 4 Having carefull y considered the remaining AOEs, the record of tria l
, and the parties’ submissions, we conclude the findings and sentence are correct in law and fact and that no error materiall y prejud iced the appellant’s substantial rights. Arts. 59(a) and 66(c), UCMJ
, 10 U.S.C. §§ 859 (a) and 866(c).
I. B ACKGROUND The appellant is an African

- American x
- ray tech nician who was assigned to the Naval Air Station Oceana Branch He alth Clinic (Oceana Cli nic) , Virginia Beach, Virginia . While in the performance of his duties at the clinic in February 2011, the appellant to ld two female patients , PG
, the dependent daughter of an active duty field grade officer, and Aviation Support Equipment Technician (Mech anical) Petty Officer 2nd Class ( ASM2 ) AL, that they had to be naked while he took t h eir x

- rays. Both women complied by removing their clothing, and the appellant purportedly took x

- rays of them

. 5 A t trial, Dr. B, a radiologist
, testified that patients are never required to be naked for any type of x
- ray. A. PG On 24 February 2011, PG ’s doctor ordered x

- rays from the Oceana Clinic because PG was having back and neck pain after a car accident. When PG went to the x

- ray room , she met two people, an “older white gentleman” and

4 United States v. Clifton , 35 M.J. 79 (C.M.A. 1992)

. It is settled law that a five

member court

- martial panel does not violate due process

. See United States v. Wolff
, 5 M.J. 923, 925 (N.M .C.M.R. 1978) (holding there was no due process deprivation for a five

- member panel in the military, in spite of the Supreme Court’s ruling in Ballew v. Georgia , 435 U.S. 223 (1978) which required juries of at least six members in Article III courts); Arti cle 16, UCMJ; 10 U.S.C. § 816. It is also settled law that the panel’s vote need not be unanimous. See Article 52(a)(2), UCMJ; 10 U.S.C. § 852 (a)(2)

. See also United States v. Matias , 25 M.J. 356, 361, (C.M.A. 1987 ). When an accumulation of errors deprives an appellant of a fair trial, Article 59(a), UCMJ, compels us to reverse it. United States v. Banks , 36 M.J. 150, 171 (C.M.A. 1992). Here, given our findings on the other AOEs, the cumulative error doctrine is inapposite.

5 We say “purportedly” because no x
- rays of the women nude were found during the investigation. A t trial, a radiology technician testified that it is possible for a technician to cause the x

- ray machine to make sounds without actually capturing an image

. A lso
, x
- rays not sent to doctor s w ere automatically and systematically purged from the Oceana Clinic’s computers.United States v. Bess , No. 201 300311

4 the appellant. 6 The older gentleman and the appellant conducted chest x

- rays of PG while she was wearing jeans and t

- shirt, but with her bra removed. 7
After these initial x
- rays, the older gentleman left. The appellant then told PG that he needed to take more x

- rays because she was in a head

- on collision and he instructed her to get completely undressed. The appellant left the room. PG did as she was directed and la y on the table completely naked. The appellant returned and appeared to take x
- rays of PG in several positions while she was completely naked. These positions includ ed having PG lay on her stomach and stick her buttocks in the air and get into a “ frog

- like position .” 8 The positions completely exposed PG’s naked vaginal area to the appellant . During this time, PG was never given a gown or other clothing to wear, and had on ly a small cloth that she tried unsuccessfully to use to cover her breasts and genitalia. Finally, PG asked if they had to continue taking

more x

- rays, and the app ellant said he would “check with [her] doctor.” 9 The appellant left the room and returned a few moments later to tell PG she could leave.
B. ASM2 AL
ASM2 AL ’ s flight surgeon ordered x
- rays for her back

. On the morning of 25 February 2011, ASM2 AL went to the x
- ray department at the Oceana Clinic and a female tech nician took x

- rays of her back while she was lying down. ASM2 AL remained fully clothed during this procedure

. L ater that evening, she was instructed to return to the Clinic’s x
- ray department because her doctor needed x

- rays of her back “taken standing up.” 10
When ASM2 AL went back to the x

- ray room with the appellant, he instructed her to remove her clothing and wear nothing except a gown. After she had changed, the appellant came back into the room a nd told her that

“ the doctor had requested that [she] wear nothing and that [she] be complete-

6 Record at 504

- 05.

7 At trial, PG was cross

- examined on her October 2011 statement to NCIS, where she stated that the older gentleman was present during the original x

- rays a nd that she was topless at that tim e. Id. at 526

- 27. On re

- direct examination, PG reiterated that

— in spite of what the NCIS agent had written

— she was naked only during the second set of x

- rays when she and the appellant were alone in the room. Id. at 532

- 3 3.

8 I d. at 515

- 16.

9 Id.

10 Id. at 341

- 42; Prosecution Exhibit (PE) 20.United States v. Bess , No. 201 300311

5 ly nude to take the x

- rays.” 11 The appellant left the room again and she took off the gown as directed, leaving her completely naked. When the appellant returned, h e had ASM2 AL sign a consent form which appeared to be “a statement from [her doctor] saying that [she] had to be nude for the x

- rays so that they would show up more clear [sic] .” 12 T he appellant then took a series of x

- rays while she was standing and compl etely naked. Throughout th e entire process, ASM2 AL’s breasts, buttocks, and vaginal area were exposed
, and the appellant encouraged her not to cover her pelvic area with her hands

. Additional facts necessary to resolution of the AOEs are included below.
II. D ISCUSSION
A. L egal and f actual s ufficiencyThe appellant argues that the evidence is legally and factually insufficient to find him guilty of both specifications of indecent conduct. We disagree. We review questions of legal and factual sufficiency de novo

. Art 66(c), UCMJ; United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual sufficiency is whether “after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, [this co urt is] convinced of appellant’s guilt beyond a reasonable doubt.” United States v. Rosario , 76 M.J. 114, 117 (C.A.A.F. 2017) (citation, internal quotation marks, and emphasis omitted). In conducting this unique appellate function, we take “a fresh, impart ial look at the evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to “make [our] own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.” Washington , 5 7 M.J. at 399. Proof beyond a reasonable doubt does not mean, however, that the evidence must be free from conflict. United States v. Goode , 54 M.J. 836, 841 (N

- M. Ct. Crim. App. 2001). “The test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Robinson , 77 M.J. 294, 297

- 98, (C.A.A.F. 2018) (quoting Rosario , 76 M.J. at 117)

. The appellant disputes only his identification as the perpetrator. He avers that “the government failed to prove beyond a reasonable doubt that [ he] was

11 Record at 343.

12 Id. at 347.United States v. Bess , No. 201 300311

6 the performing [x

- ray] technician.” 13 Therefore, we will focus on the government’s burden to prove beyo nd a reasonable doubt that it was the appellant that committed the indecent acts of unla wfully viewing the nude bodies of PG and ASM2 AL during their x

- ray examinations. 14
Of the five x

- ray technicians at the Oceana Clinic , only two would appear to be black

. One was the appellant; the other was a native of Haiti, and spoke with a “really thick” accent. 15 In addition to his accent, the other technician was readily distinguishable from the appellant

— he was tall and thin
, and had a dark

- comple xion . The appellant was comparatively stockier and had a light er complexion

. The other technician was a third class petty officer. The victims testified that their technician was a second class petty officer, like the appellant. Both victims had ample opportunity to both observe the appellant’s physical description and clearly hear his voice while they were alone in the x

- ray room with him. Both spent several minutes talking to the appellant while he pretended to provide them with medical care. Neither victim testified tha t the x
- ray technician that made them remove all of their clothes had a n accent. A t trial, PG and ASM2 AL positively identified the appellant as the x
ray technician who took their x

- rays while they were nude

.

13 Id. at 504

- 14; Appellant’s Brief of 1 Dec 2017 at 59.

14 The elements for the indecent acts alleged in Specification 1 of Charge II are: (1) The appel lant engaged in wrongful conduct by wrongfully and without necessity having PG remove all of her clothing in order to receive an x

- ray examination and having her lay on an examination table with her legs splayed, knees bent, and feet together while she was nude and on her stomach with her back arched and hips propped up while she was nude and thereby observing her genitalia, buttocks, and nipples; and (2) The conduct was indecent. The elements for the indecent acts alleged in Specification 2 of Charge II a re:(1) The appellant engaged in wrongful conduct by wrongfully and without necessity having ASM2 AL remove all of her clothing in order to receive an x

- ray examination and thereby observing her nude body, to include the genitalia, buttocks, and nipples; and (2) The conduct was indecent. 10 U.S.C. § 920(k) (2007); M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES (MCM) (2007 ed.), Part IV, ¶45b.(11); Record at 803

- 04; Charge Sheet.

15 Record at 409. We use the term “black” in the opinion because we are not certain the Haitian x

- ray technician identifies as African

- American.United States v. Bess , No. 201 300311

7 The government submitted various records to co rroborate that it was the appellant who took x

- rays of PG and ASM2 AL while they were nude

. The appellant avers that the se records were unreliable. First, the government submitted documents from a medical care records system called the Composite Healthcare System ( CHCS ) , which is used to track medical services for patients, including x

- rays. Per the CHCS, PG received her x

- rays between 1709 and 1751 on 24 February 2011 from the appellant. 16 Also per the CHCS, ASM2 AL received her x

- rays between 1645 and 1710 , and then again at 1801 on 25 February 2011 from the appellant. 17 The government also presentedthe appellant’s unit’s muster reports for the two days in question. They revealed that only one x

- ray technician was on duty for both of these l ate shifts at th e Oceana Clinic

— the appellant. The corroborating evidence from the CHCS presented by the government, however, is not infallible. Any x

- ray technician had the ability to manipulate the CHCS report by simply putting a different technician’s name into the
sy stem before taking an x

- ray. Also, it was not uncommon for a technician to take x

- rays of a patient while a different technician was logged in to the CHCS system. I n this case, however, both PG ’s and ASM2 AL ’s x
- rays were taken after normal working hours w hen the appellant was the only x

- ray technician on duty, and therefore not sharing the x

- ray machine with other technician s . We also accept that the unit’s muster reports were not fail

- safe evidence; after a muster report was taken, technicians still rotat ed between the Ocean a Clinic and another nearby clinic based on work assignments and personal necessities. But the CHCS records , in conjunction with the appellant’s unit muster reports
, corroborate the victims’ unwavering identification of the appellant as the x
- ray technician who took their x

- rays when they were nude

. We are convinced that the appellant was the x
- ray technician who took PG’s and ASM2 AL’s x

- rays while they were nude

. The evidence of his guilt is overwhelming. T he victims ’ allegations and their in

- court identifications are supported by other testimonial and documentary evidence establishing that the appellant was their x

- ray tech nician

. 18 We do not believe the victims confused the appellant for any other x

- ray tech nician working at the Ocean a

16 PE 12 at 4; Record at 439.

17 PE 14 at 2; Record at 430

- 31.

18 We also reject the appellant’s contention that because his personal marker

— a skull and crossbones with his initials

— was not visible on the victims’ x
- rays he was not the technician who conducted the x

- rays. We are not surprised that the appellant would seek to avoid identifying himself while committing crimes.United States v. Bess , No. 201 300311

8 Clinic. E ach victim’s testimony at trial supported the charges resulting in the convictions. We find unpersuasive the appellant’s argument that his identification was merely the result of government suggestibility and that the victims confused him with t he other black technician

. After carefully reviewing the record of trial and considering the evidence in the light most favorable to the prosecution, we are convinced that a reasonable fact

- finder could have found all the essential elements beyond a reason able doubt. Furthermore,after weighing all the evidence in the record of trial and having made allowances for not having personally observed the witnesses, we are convinced beyond a reasonable doubt of the appellant ’ s guilt.
B. Failure to notify the appellan t that he was on legal hold
T he appellant alleges his d ue p rocess rights were violated because the government failed to provide him notice that it was retaining him on active duty past his End of Active Obligated Service (EAOS) dat e. After the appellant s erved his confinement for his first court

- martial, his command failed to administratively change the expiration of his EAOS from 20 October 2016 to 20 April 2017 . This change should have been made because days spent in confinement do not count towards fulfilling a servicemember’s enlistment. 19 On 11 April 2017, the appellant’s command realized the error and issued him a counseling entry documenting that he had been on legal hold from 20 October 2016 to 11 April 2017. 20 T he appellant argues this lack of notice of his legal hold violated his right to due process, and that this violation caused the court

- martial to lose jurisdiction over him. We disagree.
As the appellant raises this due process concern for the first time on appeal, we apply the plain error stan dard. See United States v. Lewis , 69 M.J. 379, 383 (C.A.A.F. 2011) (applying the plain error standard to a due process claim first raised on appeal). Under the plain error standard, the appellant must show that: “(1) an error was committed; (2) the error w as plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights.” Id. (quoting United States v. Maynard , 66 M.J. 242, 244 (C.A.A.F. 2008)). Here, the appellant fails to show th at the government ’s failure to provide t his notification plainly or obviously violated his right to due process. The appellant cites no authority

— and we find none

— supporting the proposition that the government’s failure to notify him that he was being retained on active duty amounted to a violat ion of the Fifth Amendment guarantee of due

19 Appellant’s Motion to Attach of 20 Nov 2017, App. 2 at 2.

20 Id. at 2

- 3.United States v. Bess , No. 201 300311

9 process. Even if it did, the record does not reveal that the appellant was actually prejudiced. The record contains no indication that the appellant did not know that he remained on active duty. He was not discha rged after his first court

- martial. The appellant’s brief makes plain that the appellant wore a uniform and returned to active service after having been confined.

T he appellant erroneously links this perceived failure of due process with jurisdiction. The appellant incorrectly concludes that “as a result of the government’s failure to provide such notice, government officials were able to retain personal jurisdiction” over the appellant. 21 But notification is not the source of, and does not affect, jurisdict ion over a service member. Rather, the appellant was subject to the court

- martial’s jurisdiction because he had never been discharged from active duty. And t he record does not contain any reason to find that the appellant would have been discharged had he brought the government’s error to its attention. Doubtless the government would have simply notified him that he was being retained for a second trial. We find that the government did not violate the appellant’s Fifth Amend

ment right to due process , and t hat no administrative error severed court

martial jurisdictio n over the appellant.
C. Military judge’s denial of motion to produce a witness The appellant avers that the military judge abused her discretion in denying the appellant’s pre

- trial motion to compe l production of Investigator S as a witness at t rial

. We disagree. Investigator S was an investigator for the Naval Criminal Investigative Service assigned to the appellant’s case

. During his investigation, Investigator S used the CHCS to identify and the n cold

- call numerous females who might have been p otential victims of the appellant. In one of these calls, a female patient

— who was never a victim in the appellant’s case

— indicated that her x

- ray technician might have been Caucasian. This was significant because the CHCS indicated the appellant had been signed in as her x
- ray technician during the taking of her x

- rays

. The agent noted that the patient stated her technician was “Male (Caucasian)

– Not too sure.” 22 T he defense argued t hat Investigator S could t estify about t his phone call with the unknown female. They argued this would show the CHCS was too unreliable to identify which x

- ray technician took certain x

- rays.

21 Appellant’s B rief at 35.

22 Appellate Exhibit (AE) VI at 6.United States v. Bess , No. 201 300311

10 The military judge denied the motion , ruling that the testimony of Investigator S was not relevant or necessary

. She s tated that she could not “ see how it is any more likely that this is a flaw in the CHCS than it is [the female patient’s] memory of describing the x

- ray technician.” 23 The military judge found that Investigator S was cumulative w ith the defense’s own expert consultant on the CHCS . She also found that the defense could effectively

cross

- examine other government witnesses with dire ct knowledge of the CHCS

— witnesses who would readily admit that the CHCS showed only which x

- ray techni cian was signed in at any given time and not which technician took certain x

- rays. We review witness production rulin gs for an abuse of discretion. United States v. McElhaney , 54 M.J. 120, 126 (C.A.A.F. 2000 ). “The military judge’s decision should only be reversed if, ‘on the whole,’ denial of the defense witness was improper.” United States v. Ruth , 46 M.J. 1, 3 (C.A.A.F. 1997) (citations omitted) (alteration in original). We will not reverse a military judge’s ruling on a witness production motion “ unless [we] have a definite and firm conviction that the [military judge] committed a clear error of judgment in the conclusion [she] reached upon a weighing of the relevant factors. ” Id. (citations and internal quotations omitted).
The test for whether a witne ss should be produced is whether that witness is relevant and necessary. R.C.M. 703 (b)(1)

. To determine if the testimony would be relevant, the trial judge must consider whether the testimony would have any tendency to make a fact of consequence more or le ss probable, and that its probative value is not outweighed by the danger of unfairprejudice, confusing the issues, misleading the members, undue delay, wasting time, or needlessly presenting cumulative evidence. M ILITARY R ULE OF E VIDENCE (M IL . R. E VID .) 401 and 403, M ANUAL FOR C OURTS

- M ARTIAL (MCM)
, U NITED S TATES (2016 ed.)

. To determine whether a witness is necessa ry, we consider such factors as t he issues involved in the case and the importance of the requested witness as to those issues; whether the wit ness is desired on the merits or the sentencing portion of the trial; whether the witness ’ s testimony would be merely cumulative; and the availability of alternatives to the personal appearance of the witness, such as deposition, interrogatories or previou s testimony. Ruth
, 46 M.J. at 4 ( quoting United States v. Tangpuz , 5 M.J. 426, 429 (C.M.A. 1978) )

.

23 Record at 37.United States v. Bess , No. 201 300311

11 W e agree with the military judge’s finding that Investigator S’ s testimony would have had very minimal, if any
, relevance. The unidentified female patient’s memory was inconclusive
, and Investigator S could only speculate about what her testimony actually meant regarding the reliability of the CHCS. We concur with the military judge’s finding that a faulty memory of one patient would shed little, if any, ligh t on the trustworthiness of the CHCS.
W e also conclude that the military judge did not err in finding the evidence was not necessary. Although she did not spell out all of the Ruth factors for determining when a witness is necessary, the military judge di d address two of the factors in her ruling : She addressed the first Ruth factor

— the issues involved in the case and the importance of the requested witness as to those issues

— when she found Investigator S’s testimony unimportant regarding the reliab ility o f the CHCS. She also addressed the third Ruth factor

— whether the witness ’ s testimony would be merely cumulative

— in finding that there w ere already several witnesses who were going to testify about the reliability of the CHCS. In fact, t he defense conceded that the government was going to call at least three x

- ray technicians who would testify that the CHCS did not always portray who a patient’s actual x

- ray technician was because the technicians could “select any name from the drop

down menu” when they took the x

- rays. 24
A s the military judge anticipated, t he issue of the CHCS ’s reliability was addressed by several witnesses at trial . No fewer than three government witnesses and three defense witnesses

— including t he appellant himself

— testified regarding the reliability of u sing the CHCS to positively identify which x

- ray technician took a certain x

- ray

. 25 Production of Investiga t or S’s testimony was not necessary. Accordingly, we conclude that the military judge did not abuse her discretion in denying the prod uction of Investigator S.
D. Denial of discovery The appellant asserts that the military judge abused her discretion in denying production of a statistical breakdown of the racial make

- up of the population of the CA’s command

.

24 Id. at 22.

25 Id. at 402

- 79; 540

- 647; 675

- 97; 737

- 45; 746

- 78.United States v. Bess , No. 201 300311

12 1. Background After general voir di re, but before the first member was brought in for individual voir dire, the trial defense counsel (TDC) stated the defense team had noticed that the “ the panel [ was ] all white ,” their client was African

American , and they “would prefer African

- American re presentation on the panel.” 26 The TDC indicated they were making “a combination of an Article 25 [UCMJ,] challenge

. . . almost like a preventative Batson challenge

. . . . It is almost as though a command is preventing that race from representation on the p anel so that they can avoid a Batson challenge. ” 27 The military judge responded: [A]bsent any evidence of anything inappropriate being done by the convening authority in assembling the panel , you know, all I can state for the record is that, if it wasn’t f or frankly some of

— the reading that I did about the prior proceeding, I wouldnot personally have known the race of your client, and I certainly would not know necessarily by observing him, nor do I feel confident that I know the race of several of the mem bers of the panel. I suspect that we have some minority participation on the panel

. . . . 28 In response, the TDC stated, “I may have mis s poke [sic] and said that[the panel] were all Caucasian, and that might not be true. I am fairly confident that there i s no African

- American on the panel of 10, which statistically speaking, you would think that there would be at least one. ” 29 The TDC then requested to expand their initial discovery request

— which had been for the documents accompanying the selection of memb ers under Article 25, UCMJ

— to include “a statistical breakdown of the population as far as race with respect to the convening authority’s command.” 30 The military judge denied the discovery request

. First, s he found that the defense had been in possession o f the member’ s questionnaires for a week before trial and should have raised the issue earlier . Second, she found that a statistical breakdown of the CA’s command based on race was not feasible
, and was irrelevant absent any evidence of impropriety

.

26 Id. at 140.

27 Id. at 14 1

.

28 Id.

29 Id. at 143.

30 Id. at 144.United States v. Bess , No. 201 300311

13 Final ly, the TDC argued that th is was the second members panel in a row in which he was representing an African

- American client and the members appeared to be “an all

- white panel .” 31 The military judge noted the TDC’s objection for the record and then directed t hat the first member be called in for individual voir dire.

2. D enial of request for discovery
W e review a military judge’s ruling on a request for production of evidence for an abuse of discretion. United States v. Rodriguez , 60 M.J. 239, 246 (C.A.A.F. 2004 ). The military judge abuses her discretion when her findings of fact are clearly erroneous or her ruling is influenced by an erroneous view of the law. United States v. Freeman , 65 M.J. 451, 453 (C.A.A.F. 2008). Here, although we find the military judge e rred in declaring the TDC’s objection to the panel untimely
, she did not abuse her discretion by denying the discovery request

. With regard to timeliness, the military judge misapprehended the content of the members’ questionnaires. Only one of the ten me mber’s questionnaire s had a question asking the member to identify her race. 32 T he appellant would have had no way of knowing what race the members appeared to be until the y actually a rrived at the trial. The military judge’s finding, therefore, that the de fense could have used the questionnaires to bring the motion sooner

was incor rect. The defense brought the issue to the military judge’s attention when it came to their attention. Our superior court has ruled that a n objection that the CA selected members for reasons other than t hose listed in Article 25, UCMJ

— such as excluding members based on race

— is always timely and never waived

. United States v. Riesbeck
, 77 M.J. 154, 160 (C.A.A.F. 2018)

. 33 Although the military judge erred with regard to the timeliness of the motion, we find that she did not abuse her discretion in denying the motion. First, the defense request for “a statistical breakdown of the population as far as race with respect to the convening authority’s command” is not relevant. The record rev eals that the CA was able to detail members from outside Navy Region Mid

- Atlantic, and even from commands not subordinate to his com-

31 Id. at 146.

32 A E XXVVII at 76 . The member with the racial identifier question self

identified as Caucasian.

33 The CAAF equated this attack on member selection to UCI. “We also noted that improper member selection can constitute unlawful command influence, which cannot be waived.” Riesbeck , 77 M.J. at 176

. See Section F, infra

.United States v. Bess , No. 201 300311

14 mand. The record also reveals that no members detailed to the appellant’s court

- martial listed Navy Region Mid

- Atlantic

— the CA’s command

— as their current command. Knowing the racial makeup of the CA’s command , therefore, would not have been useful to the court

- martial.
We are unable to re

- construe the request to be more relevant. The record does not reveal what additional comma nds made up the CA’s pool of available members. We cannot know

— and the appellant has not demonstrated

— what a request for more relevant information might have looked like. What commands’ demographic information should be used? Over what period of time? In t erms of eligibility under Article 25, UCMJ, w hat would be the appropriate groups of people to conside r? The appellant’s request at trial was for irrelevant information, and the military judge did not abuse her discretion by denying it. On appeal, the appel lant asks us to re

- tool the request and order a DuBay hearing to “require the government to produce the racial and statisticalmakeup of the pool of members for the CA and ‘articulate[ ] a neutral explanation relative to this par ticular case, giving a clea r and reasonably specific explanation of legitimate reasons’ for excluding black members from HM2 Bess’ venire.” 34 We find, however, that the record is sufficient for us to determine that the military judge did not abuse her discretion by denying the
reques t as it was made at trial. The appellant presented no evidence that the CA used anything other than the Article 25 , UCMJ, criteria for selecting members, or that he even knew the race of all but one of the members he selected. The appellant’s mid

- voir dire request was for irrelevant information, and the military judge right l y denied it at the time. We decline the appellant’s invitation to litigate new requests post

- trial. This assignment of error is without merit.
E. No African

- Americans on the panel
T he appe llant urges us to extend Batson v. Kentucky
, 476 U.S. 79 (1986) and hold that the military judge erred by not requiring the CA to give a race

neutral reason for not having any African

- Americans on the panel. We decline to do so.
Batson , as applied to the m ilitary in United States v. Santiago

- Davila
, 26 M.J. 380 (C.M.A. 1988), allows an accused to require a prosecutor to give a

race

- neutral reason for exercising a peremptory challenge on a minority member . The appellant argues that the CA circumvented Batson by not in-

34 Appellant’s B rief at 47 (quoting United States v. Moore , 28 M.J. 366, 369 (C.M.A. 1989) (alteration in original)

.United States v. Bess , No. 201 300311

15 cluding any African

- Americans on the panel. The appellant argues that the absence of African

- Americans on the panel is prima facie evidence that the CA systema tically excluded them, and that, under Batson , the burden shifted to the government

— pre sumably the CA

— to give a race

- neutral reason for not including African

- Americans. There is no precedent for this application of Batson in courts

- martial, and we decline to create it here. Additionally, we are bound by precedent that establishes that
, absen t further evidence of some intentional exclusion of a particular group by the CA, the absence of Africa n

- Americans on the panel does not constitute prima facie evidence of systematic exclusion. See United States v. Loving , 41 M.J. 213, 285 (C.A.A.F. 1994). This assignment of error is without merit

. F. Unlawful Command Influence
The appellant claims that the commander exerted UCI by excluding African

- American members from the panel. We disagree. To prove UCI on appeal the appellant must show (1) facts, that i f true, constitute UCI, (2) the prior proceedings were unfair, and (3) the UCI “ was the cause of the unfairness.” United States v. Biagase , 50 M.J. 143, 150 (C.A.A.F. 1999) (citing United States v. Stombaugh , 40 M.J. 208, 213 (C.M.A. 1994)). The appellant must show facts that, if true, allege the members were selected on an impermissible basis to affect the result of the trial. Riesbeck
, 77 M.J. at 159. Proximate causation between the alleged UCI and court martial outcome must be proven as well. Biagase , 50 M.J. at 150 (citing United States v. Reynolds , 40 M.J. 198, 202 (C.M.A. 1994)). Allegations of UCI are reviewed de novo by this court. United States v. Sayler , 72 M.J. 415, 423 (C.A.A.F. 2013) (citing United States v. Harvey , 64 M.J. 13, 19 (C.A.A.F. 2006 )). The appellant alleges that the CA used race to select an all

- white panel in order to engage in court stacking, a form of UCI

. Riesbeck , 77 M.J. at 165. “The initial burden of showing potential [UCI] is low, but is more than mere allegation or speculati on.” Id. (citing United States v. Stoneman , 57 M.J. 35, 41 (C.A.A.F. 1999). If the defense presents some evidence of UCI, the burden shifts to the government to show either that there was no UCI, or that any UCI did not taint the proceedings. Stoneman , 57 M.J. at 41. We find that the appellant has not met his initial burden. With the exception of the one member’s questionnaire that had a racial or ethnicity identifying question and response, t here is no evidence that the CA knew the race of any of the othe r nine members detailed to the court

- martial

. Again, w e observe that none of the members list ed Navy Region Mid

- Atlantic as their parent command on their member questionnaires

. As all of the membersUnited States v. Bess , No. 201 300311

16 denied personally kn owing the CA during voir dire , we hav e no reason to suspect that the CA personally knew the m and would therefore have known the ir race. This court cannot even be sure of the members’ race as the record is absent of any questions posed during voir dire to the members by either counsel or the m ilitary judge regarding the members’ racial or ethnic background. We note that the appellant’s counsel was in possession of the matters the CA used to select members, and that he failed to introduce these matters as evidence. Also, the appellant did not c all the CA as a witness to ask him about how he selected members.
We have considered the affidavit provided by trial defense counsel’s executive officer. In that affidavit, the executive officer notes that he represented an African

- American officer at c ourt

- martial seven months after the appellant’s trial. Before that officer’s trial, the executive officer sent a letter to the CA asking for minority representation at the officer’s trial. The CA complied wi th that request. In the affidavit the executive o fficer goes on to state that he is aware of three other cases in which African

- Americans were tried by all

white panels convened by the CA

. We find that this anecdotal observation by the executive officer of a defense command , which cuts both in favor of a nd agains t the appellant’s allegation of CA bias, does not shift the burden to the government to disprove UCI.In addition to considering the case for actual UCI, we have considered apparent UCI, asking whether “ an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding.” Sayler , 72 M.J. at 423 (citing Lewis , 63 M.J. at 415). We find that there are insufficient facts on the record that would lead a reasonabl e person to harbor significant doubt about the fairness of the proceeding. In possession of the CA’s members ’ selection material, the appellant presented no evidence that the CA selected members by using any criteria other than those found in Article 25 , U CMJ . This assignment of error is without merit.
G. Failure to grant a mistrial The appellant a vers t hat the military judge abused her discretion in failing to grant a mistrial. We disagree.
Before the beginning of the trial, the TDC reminded the military ju dge that the parties had agreed “to reference any testimony from the first trial

. . . as ‘prior testimony at a prior hearing,’ rather than

. . . that it was an actual contested trial.” The military judge agreed: As you stated, we

— our goal is to preclude a ny indication to the members that there was a previous court

- martial. And, asUnited States v. Bess , No. 201 300311

17indicated, counsel should refer to any prior testimony as something of the nature of, “ At a prior hearing, ” or, “ During prior testimony, ” something of that nature, and not refer to a court

martial. 35During trial, the government called Dr. B, an expert in radiology. On redirect examination, the prosecutor asked Dr. B if he had reviewed certain x

rays on the high resolution monitors at his office before trial. Dr. B responded, “Not for this particular trial. I did for the original trial.” 36 The militaryjudge quickly excused the members and discussed issuing a curative instruction with the parties. The defense refused to participate in the drafting of the curative instruction and ask ed for a mistrial. The military judge denied the mistrial and provided the members with the following curative instruction:Members, you are to completely disregard Dr. [B’s] statement concerning a prior proceeding. There are many ways and reasons why a pr ior proceeding that may have occurredcould’ve terminated. And you may make no inference concerning the guilt or innocence at [sic] the accused. You are to determine the accused’s guilt or innocence based solely on the evidence presented to you in court. I s there any member who cannot follow this matter? 37 All of the members indicated that they could follow the instruction. The military judge gave the appellant the overnight recess to draft a written motion for mistrial. The defense filed the written motion the next morning, which the military judge denied. In her ruling, the military judge pointed out that Dr. B mentioned only that there was a prior trial

— not a prior conviction

— and that the defense failed to provide any source of law for the proposition that such a statement was worthy of a mistrial. The military judge ruled that a curative instruction was the appropriate remedy. [T]here were multiple and various inferences the members could draw if permitted to make inferences regarding the mere mention of a previous trial. That is exactly why I deemed a curative instruction to be the appropriate remedial action to stop as quickly as possible the members from making any infer-

35 Record at 80.

36 Id. at 647.

37 Id. at 664.United States v. Bess , No. 201 300311

18 ences. I do not agree with the defense that the only acceptable curative instruction would require lying to the members. 38 “We will not reverse a military judge’s determination on a mistrial absent clear evidence of an abuse of discretion.” United States v. Ashby , 68 M.J. 108, 122 (C.A.A.F. 2009) (citing United States v. Rushatz , 31 M.J. 450, 456 (C.M.A. 1990)). A military judge “may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings.” R.C.M. 915(a). But “a mistrial is an unusual and disfavored remedy. It should be applied only as a last resort to protect the guarantee for a fair trial.” United States v. Diaz , 59 M.J. 79, 90 (C.A.A.F. 2003). “A curative inst ruction is the preferred remedy, and the granting of a mistrial is an extreme remedy which should only be done when ‘inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members.’” Id. at 9 2 (quoting R.C.M. 915(a), Discussion). Here, we find the military judge did not abuse her discretion by denying the request for a mistrial. We do not believe the mere mention of a previous trial by Dr. B cast s substantial doubt upon the fairness of the pro ceedings. See R.C.M. 915(a). The doctor’s comment was not so prejudicial that a curative instruction did not cure it. In fact, the curative instruction alleviated any possible prejudice that might have arisen. We presume “absent contrary indications, that the panel followed the military judge’s instructions.” United States v. Sewell , 76 M.J. 14, 19 (C.A.A.F. 2017).
H. The government taking the appellant’s uniforms The appellant claims he was unlawful ly punish ed under Article 13
, UCMJ
, when the government ke pt h is uniform s after his first conviction was overturned and he was released from the brig. We disagree.
Before findings, the appellant made an oral Article 13, UCMJ, motion alleging illegal pretrial punishment. The appellant testified that he was requir ed to turn in his uniforms when he entered confinement after his first court

- martial. He was then ordered back to active duty when his convictions were set aside. The appellant testified that he then bought $400 .00 worth of new uniforms because none of the command’s spare uniforms fit him

. The military judge denied the motion because she found no punitive intent by the command to punish the appellant, and “multiple legitimate[,] non

- punitive

38 Id. at 671.United States v. Bess , No. 201 300311

19 government interests” for taking uniforms from servicemembers rece iving a dishonorable discharge. 39 Article 13, UCMJ, prohibits pretrial punishment: “[n]o person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him [.]” The CAAF has det ermined that for the appellant to receive relief, he must show that the government intended to punish him. “ [T]he question of whether particular conditions amount to punishment before trial is a matter of intent, which is determined by examining the purpos es served by the restriction or condition,and whether such purposes are reasonably related to a legitimate governmental objective.” Howell v. United States , 75 M.J. 386, 393 (C.A.A.F. 2016) (quoting United States v. Palmiter, 20 M.J. 90 (C.M.A. 1985)) (al teration in original) (internal quotation marks omitted)

.

“ The burden is on [the] appellant to establish entitlement to additional sentence credit because of a violation of Article 13[, UCMJ].” United States v. Mosby , 56 M.J. 309, 310 (C.A.A.F. 2002) (cit ing R.C.M. 905(c)(2)). Whether an appellant is entitled to relief for a violation of Article 13, UCMJ, is a mixed question of law and fact. Id. (citing United States v. Smith , 53 M.J. 168, 170 (C.A.A.F. 2000) and United States v. McCarthy , 47 M.J. 162, 165 (C.A.A.F. 1997)) (additional citation omitted). “We will not overturn a military judge’s findings of fact, including a finding of no intent to punish, unless they are clearly erroneous

. We will review de novo the ultimate question whether [this] appellant is entitled to credit for a violation of Article 13[, UCMJ].” Id. (citing Smith , 53 M.J. at 170). Here, the appellant presented no evidence that the government acted with a punitive intent when it appropriated his uniforms after his first conviction. Acco rdingly, the military judge found no intent to punish: “[T]heredoes not appear to be any punitive intent in the lack of retention of [the appellant’s] uniforms while he was in the brig, or those items being returned to him.”
T he military judge also found legitimate, nonpunitive purposes for the government’s policy of confiscating uniforms of servicemembers who had received punitive discharges. Those reasons included: (1) preventing servicemembers who had received punitive discharges from wearing their unif orms out in town; (2) complying with the Naval Military Personnel Manual’s requirement for persons with punitive discharges to surrender their uniforms; 40

39 Id. at 10 89

- 90.

40 MILPERSMAN, Art. 1910

- 228 , p.1 ( CH

- 11, 1 Jun 2005).United States v. Bess , No. 201 300311

20 and (3) compliance with 10 U.S.C. § 771a ’s requirement that when an enlisted servicemember is discharg ed dishonorably his issued clothing must be retained by the military. 41 The military judge’s findings of fact are supported by the record and are not clearly erroneous. Her conclusions of law are correct. Accordingly, we find that the appellant is not enti tled to relief under Article 13 , UCMJ

. III. C ONCLUSION The findings and sentence as approved by the CA are affirmed

. Chief Judge WOODARD and Senior Judge FULTON concur

.

FOR THE COURT

RODGER A. DREW, JR. Clerk of Court

41 Record at 1089

- 90.