This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

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: David M. Jones

For Appellant: Lieutenant 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 command 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 evidence of UCI during the sentencing phase of his courtmartial 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

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I. Background

During 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 engaged in inappropriate conduct with four female poolees2

during this time period, and that he continued his misconduct with one poolee into 2013. This misconduct with the 

four poolees “included his sending thousands of inappropriate electronic communications, engaging in unwanted sexual 

activity with two of the four [poolees], and plying a third 

[poolee] with alcohol and commencing an adulterous relationship with her.” Chikaka, 2016 CCA LEXIS 223, at *4, 

2016 WL 1456741, at *2.

Appellant’s wrongdoing resulted in a trial before a general 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 sexual contact, one specification of abusive sexual contact, one 

specification of adultery, one specification of indecent language, and four specifications of obstruction of justice, in violation of Articles 80, 92, 120, and 134, Uniform Code of Military 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 photograph of the Commandant of the Marine Corps shaking 

hands with one victim’s great grandfather who was receiving

the Congressional Gold Medal. Second, the military judge 

permitted Appellant’s commanding officer to testify as follows when trial counsel asked him to explain “how important it 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 recruiting, 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

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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 bad. 

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 consider 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 surgery 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, is 

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. 

There’s no way to lessen the blow. It’s a significant 

blow. It’s something I do not want to have happen 

to me.”

Trial 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 Congressional 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, ... the need to send a strong message 

inside the Marine Corps, not just to the high 

schools and the community, but for all the canvas[s]ing recruiters out there right now that might 
United States v. Chikaka, No. 16-0586/MC

Opinion of the Court

4

be teetering, that might be having a difficult home 

situation, difficult marriage, 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, misusing the government cell. This is sexual assault, attempted sexual assault of another poolee, adultery 

with another poolee, indecent language with another poolee over years.

The 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 dishonorable discharge. 

The convening authority approved the sentence, but the 

CCA set aside this action and afforded Appellant the opportunity to submit clemency materials. On remand, the convening authority approved a sentence of confinement for ten 

years and the remaining adjudged sentence. 

In Appellant’s subsequent appeal, the CCA held, in relevant part, that the military judge did not abuse his discretion 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, the CCA 

also determined that the military judge erred in admitting 

two pieces of evidence, including the commanding officer’s

presentencing testimony, albeit on evidentiary grounds rather than on UCI grounds. Id. at *30–39, 2016 WL 1456741, 

at *11–13. The CCA also concluded that three obstruction of 

justice specifications constituted an unreasonable multiplication of charges, consolidated these specifications, and affirmed 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 affirmed a sentence that included confinement of five years, a 

reduction to E-1, forfeiture of all pay and allowances, and a 

dishonorable discharge. Id. at *44–45, 2016 WL 1456741, at

*15.
United States v. Chikaka, No. 16-0586/MC

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We then granted review of the following issue:

Where the military judge admitted on the merits a 

campaign plan to “fully operationalize the Commandant’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 members 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 influence 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 conducting this review, we first must determine 

whether an 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. 2017). 

This “some evidence” standard is low, although an appellant 

must allege “more than mere allegation or speculation.”

Salyer, 72 M.J. at 423. Once an appellant has met this initial evidentiary burden, the burden shifts to the government 

to rebut the allegation of UCI beyond a reasonable doubt. Id.

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 we 

 3 We also granted review to determine whether the military 

judge erred by instructing the members, “‘[i]f, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty.’” 

Chikaka, 76 M.J. at 41. Because Appellant 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 operationalize the Commandant’s guidance’ from the Heritage Tour” as 
United States v. Chikaka, No. 16-0586/MC

Opinion of the Court

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reach a different conclusion, as demonstrated below, with 

respect to the sentencing phase of his trial.

In United States v. Ohrt, we indicated that the use of “a 

commanding officer before a court-martial ... to influence the 

court members into returning a particular sentence” implicates unlawful command influence. 28 M.J. 301, 303 (C.M.A. 

1989). Specifically, we stated: “The question of appropriateness 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 commander’s opinion as to an appropriate punishment .... invade[s] the province of the court-martial and constitute[s] 

unlawful command influence.” 31 M.J. 1, 5 (C.M.A. 1990) 

(citations omitted). And yet, despite this long-standing precedent, 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 constituted “some evidence” of unlawful command influence.5

The Government argues that the CCA’s sentence reassessment remedied any unlawful command influence in Appellant’s case. However, the CCA did not grant relief on the 

basis of unlawful command influence. Instead, the CCA re-

 

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 within the Marine Corps) as a basis for establishing 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 influence to occur in this particular case. Accordingly, we do not address this matter further.

5 We also are concerned about the admission of the Commandant’s photograph. It is unclear what legitimate purpose this photograph served, and it raises the specter of the Government improperly 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 unlawful 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

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assessed Appellant’s sentence because of evidentiary error 

and unreasonable multiplication of charges. Thus, the issue 

of unlawful command influence remains unresolved for purposes of sentencing. Accordingly, we 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 

sentencing 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. The 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.