This opinion is subject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS
FOR THE 

### A RMED 

### F ORCES

_______________ UNITED STATES Appellee

v.
Nhubu C. CHIKAKA , Staff Sergeant United States Marine Corps , Appellant

No. 16

- 0586 Crim. App. No. 201400251 Argued May 23, 2017

— Decided June 20, 2017 Military Judge: D avid M. Jones For Appellant: L ieutenant Doug Ottenwess
, JAGC, USN (argued); Major M. Brian Magee , USMC

. For Appellee: Lieutenant Commander Jeremy R. Brooks
, JAGC, USN (argued); Lieutenant Robert J. Miller
, JAGC, USN, and Brian K. Keller
, Esq. (on brief); Captain Cory A. Carver , USMC

. Judge OHLSON delivered the opinion of the Court, in which Chief Judge ERDMANN, Judges STUCKY and SPARKS, and Senior Judge COX, joined

.

_______________ Judge OHLSON delivered the opinion of the Court.
We granted review to determine whether the lower court erred in concluding that Appellant’s claim of unlawful co mmand influence (UCI) was “ without merit. ” 1 United States v. Chikaka , 76 M.J. 40, 41 (C.A.A.F. 2016). For the reasons set forth below, we hold that Appellant presented sufficient ev idence of UCI during the sentencing phase o f his court

martial to cause the burden to shift to the Government to disprove UCI beyond a reasonable doubt

. Accordingly, the decision of the United States Navy

- Marine Corps Court of Criminal Appeals (CCA) is affirmed as to the findings but reversed as to the sentence

.

1 United States v. Chikaka , No. NMCCA 201400251, 2016 CCA LEXIS 223, at *39 n.40, 2016 WL 1456741, at *13 n.40 (N

- M. Ct. Crim. App. Apr. 12, 2016).United States v. Chikaka , No. 16

- 0586/MC Opinion of the Court

2 I. Background

D uring the spring and summer of 2012
, Appellant was a married recruiter in the Sixth Marine Corps District

. The evidence adduced at trial demonstrated that Appellant e ngaged in inappropriate conduct with four female poolees 2 du ring this time period, and that he continued his misco nduct with one poolee into 2013. This misconduct with the four poolees “ included his sending thousands of inappropr iate electronic communications, engaging in unwanted sexual activity with two of the fo ur [poolees] , and plying a third [poolee] with alcohol and commencing an adulterous rel ationship with her. ” Chikaka
, 2016 CCA LEXIS 223, at *4
, 2016 WL 1456741, at * 2

. Appellant’s wrongdoing resulted in a trial before a ge neral court

- martial composed of officer and enlisted members

. He was convicted, contrary to his pleas, of one specification of attempted abusive sexual contact, nine specifications of violating a general order, one specification of wrongful sex ual contact, one specification of abusive se xual contact, one specification of adultery, one specification of indecent la nguage, and four specifications of obstruction of justice, in vi olation of Articles 80, 92, 120, and 134, Uniform Code of Mil itary Justice , 10 U.S.C. §§ 880, 892, 920, 934 ( 2006 & 2012)

. During the sentencing phase of the court

- martial
, the military judge admitted two pieces of evidence relevant to the issue before us . First, the military judge admitted a ph otograph of the Commandant of the Marine Corps shaking hands with one vict im’s great grand father who was receiving the Congressional Gold Medal . Second, the military judge permitted Appellant’s commanding officer to testify as fo llows when trial counsel asked him to explain “how i mportant i t is to set a strong example for general deterrence in [the Sixth] Marine Corps District as a whole”: And I would say [it] ... goes beyond that, beyond r ecruiting, but ... if you haven’t been a recruiter

-- I know I can see by the experience you have, you’ve been around it . You’ve worked with recruiters. You understand that. One of you may be a recruiter. If

2 A poolee is an individual who has enlisted in the Marine Corps but has not yet reported for basic training.United States v. Chikaka , No. 16

- 0586/MC Opinion of the Court

3 you

-- if this type of thing, any type of misconduct, fraudulent enlistment, some kind of crime out in town, driving under the influence, those are all ba d. But if you have something that completely goes against what we stand for, preys upon a weaker group of people, younger, they’re less experienced; in many cases, they’re juveniles, 17. You can co nsider 18 an adult. Sometimes they don’t act that way. And it goes

-- and we say, “Hey, if we’re just going to treat that lightly.” So you’re going to get
, you know, there’s maybe

... a precedent set that it’s somewhat on par with someone that gets a DUI or that didn’t listen when a parent said, “Well, he did have s urgery when he was 12.” “Well, I don’t know if I want to bring that up because I’m afraid this kid won’t be able to join.” To me there’s no parallel there. So it needs to be something that says, “If you do this, everything around you, generally speaking, i s going to stop.” And Marines that are potentially in a vulnerable window

-- for whatever reason

-- that might be predisposed to go this way, would see that as a deterrent and say that, “There’s no middle ground. There’s no way to negotiate out of this. Th ere’s no way to lessen the blow. It’s a significant blow. It’s something I do not want to have happen to me.”
T rial counsel then argued for a sentence of confinement for ten years. (The maximum sentence of confinement for Appellant’s offenses was thirty

- six years and six months.) In seeking this sentence, trial counsel referenced both the Commandant’s photograph and the commanding officer’s testimony : [The victim] couldn’t look her great

- grandfather in the eye at the same time he’s receiving a Congre ssion al Gold Medal by our Commandant and say, “Hey, this is what’s happening to me. This is my experience in the United States Marine Corps.”

... .

... General deterrence is a big issue, and we want to talk about everything [ the commanding officer ] talked about,

... t he need to send a strong message inside the Marine Corps, not just to the high schools and the community, but for all the ca nvas [ s ] ing recruiters out there right now that mightUnited States v. Chikaka , No. 16

- 0586/MC Opinion of the Court

4 be teetering, that might be having a difficult home situation, difficult marria ge, that are thinking, “Here’s a high school kid, poolee.” They’re working 80

- hour work weeks. We need a strong message that

... this misconduct will not be tolerated. This is different. This is not misusing the GOV, misu sing the government cell. This is sex ual assault, a ttempted sexual assault of another poolee, adultery with another poolee, indecent language with anot her poolee over years.
T he members sentenced Appellant to confinement for twelve years, a reduction to the pay grade of E

- 1, forfeiture of all pay and allowances, and a disho norable discharge. The convening authority approved the sentence, but the CCA set aside this action and afforded Appellant the oppo rtunity to submit clemency materials. On remand, the co nvening authority approved a sentence of confinement for ten years and the remaining adjudged sentence. In Appellant’s subsequent appeal, the CCA held , in rel evant part, that the military judge did not abuse his discr etion in admitting the Commandant’s photograph

. Chikaka
, 2016 CCA LEXIS 223 , at *28

– 30, 2016 WL 1456741, at *10. Further, the CCA more generally held that Appellant’s claim of unlawful command influence was “without merit.” Id. at *39 n.40, 2016 WL 1456741, at *13 n.40. However, t he CCA also determined that the military judge err ed in admitting two pieces of evidence , including the commanding officer’s
pre sentencing testimony , albeit on evidenti ary grounds r ather than on UCI grounds

. Id. at *30

– 39, 2016 WL 1456741, at *11

– 13. The CCA also concluded that three obstruction of justic e specifications constituted an unreasonable multipl ication of charges, consolidated these specifications, and a ffirmed the findings as to the consolidated specification and the remaining specifications and charges. Id. at *14

– 15, 2016 WL 1456741, at *5

– 6. “[T]o obviate the impact of these errors,” the CCA reassessed Appellant’s sentence and a ffirmed a sentence that included confinement of five years, a reduction to E

- 1, forfeiture of all pay and allowances, and a dis honorable discharge. Id. at *44

– 45, 2016 WL 1456741
, at *15

.United States v. Chikaka , No. 16

- 0586/MC Opinion of the Court

5 We then granted r eview of the following issue:
Where the military judge admitted on the merits a campaign plan to “fully operationalize the Co mmandant’s guidance” from the Heritage Tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant’s commanding officer to testify that it was important for the me mbers to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command i nfluence in this case?
Chikaka , 76 M.J. at 41

. 3
II. Applicable Legal Principles
We review allegations of unlawful command influence de

novo. United States v. Salyer , 72 M.J. 415, 423

– 24 (C.A.A.F. 2013). In conducti ng this review , we first must determine whether a n appellant has met his or her initial burden of presenting “ some evidence ” of unlawful command influence. See United States v. Boyce
, 76 M.J. 242
, 249 (C.A.A.F. 201 7 )

. This “some evidence” standard is low, a lthough an appellant must allege “more than mere allegation or specula tion

. ” Salyer
, 72 M.J. at 423

. Once an appellant has met t his in itial evidentiary burden, the burden shifts to the government
to rebut the allegation of UCI beyond a reasonable doubt

. I d

. III. Discussion In the instant case, Appellant argues that he established

“ some evidence ” of unlawful command influence at both the findings and sentencing phases of his trial

. Although we conclude that Appellant has failed to show “some evidence” of UCI during the findings portion of his court

- martial, 4 w e

3 We also granted review to determi ne whether the military judge erred by instructing the members, “‘[i]f, based on your co nsideration of the evidence, you are firmly convinced that the a ccused is guilty of the crime charged, you must find him guilty.’” Chikaka, 76 M.J. at 41. Because Appel lant did not object to the instruction, we hold that the military judge did not plainly err in accordance with our decision in United States v. McClour , 76 M.J. 23 (C.A.A.F. 2017).

4 The granted issue refers to “a campaign plan to ‘fully oper ationalize the Commandant’s guidance’ from the Heritage Tour” asUnited States v. Chikaka , No. 16

- 0586/MC Opinion of the Court

6 reach a different conclusion , as demonstrated below, with respect to the sentenc ing phase of his trial

. In United States v. Ohrt
, we indicat ed that the use of “a commanding officer before a court

- ma rtial ... to influence the court members into returning a particular sentence” impl icates unlawful command influence

. 28 M.J. 301, 303 (C.M.A. 1989)

. Specifically, w e stated: “The question of appropriat eness of punishment is one which must be decided by the
court

- martial; it cannot be usurped by a witness.” Id. at 305. Similarly, in United States v. Cherry
, we held that “ a co mmander’s opinion as to an appropriate punishment .... i nvade[s] the province of the court

- martial and constitute[s] unlawful command infl uence.” 31 M.J. 1, 5 (C.M.A. 1990) (citations omitted)

. And yet, despite this long

- standing pre cedent, Appellant’s commanding officer, who outranked the entire panel and was within the chain of command of at least one member, was permitted to testify at some length about the importance of a harsh sentence being imposed by the court

- martial. We conclude that this testimony const ituted “some evidence” of unlawful command influence

. 5

The Government argues that the CCA’s sentence rea ssessment re medied any unlawful command influence in A ppellant’s case

. However, the CCA did not grant relief on the basis of unlawful command influence . Instead, the CCA r e-

evidence of unlawful command influence. Similarly , Appellant cites this “campaign plan” (i.e., the Sixth Marine Corps District’s Operation Restore Vigilance Campaign Plan which addressed sexual assault wit hin the Marine Corps) as a basis for establis hing a claim of unlawful command influence. However, we conclude that the record before us does not contain “some evidence” that either the campaign plan or the underlying Heritage Tour caused unlawful command i nfluence to occur in this particular case. A ccordingly, we do not address this matter further

. 5 We also are concerned about the admission of the Comma ndant’s photograph. It is unclear what legitimate purpose this ph otograph served, and it raises the spect er of the Government i mproperly inserting the Commandant into the deliberation room. In light of our conclusion concerning the presentencing testimony of Appellant’s commanding officer, we need not decide whether the admission of the photograph constituted “some evidence” of u nlawful command influence. We leave this issue for the CCA to evaluate on remand.United States v. Chikaka , No. 16

- 0586/MC Opinion of the Court

7 assessed Appellant’s sentence because of evidentiary error and unreasonable multiplication of ch arges

. Thus, t he issue of unlawful command influence remains unresolved for pu rposes of sentencing

. Accordingly, w e remand in order for the CCA to determine whether , in light of our decision in Boyce, there was unlawful command influence at the sentencing stage of the instant case and, if so, whether any additional
sentenc ing relief is warranted

. IV. Decision
The decision of the United States Navy

- Marine Corps Court of Criminal Appeals is affirmed as to the findings but reversed as to the sentence. T he record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further proceedings consistent with this opinion

.