Judge McDonald participated in the decision of this case prior to detaching 

from the court

UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

K.J. BRUBAKER, K.M. MCDONALD, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

LAMONT E. HOYES

CULINARY SPECIALIST FIRST CLASS (E-6), U.S. NAVY

NMCCA 201300303

GENERAL COURT-MARTIAL

Sentence Adjudged: 25 January 2013.

Military Judge: CDR Colleen Glaser-Allen, JAGC, USN.

Convening Authority: Commander, Naval Air Force Atlantic, 

Norfolk, VA.

Force Judge Advocate's Recommendation: CAPT T.J. Welsh, 

JAGC, USN.

For Appellant: LT Jennifer L. Myers, JAGC, USN.

For Appellee: LCDR Keith B. Lofland, JAGC, USN; Capt 

Matthew M. Harris, USMC.

4 June 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A panel of officer and enlisted members sitting as a 

general court-martial convicted the appellant, contrary to his 

pleas, of conspiracy to commit aggravated sexual assault, 

violation of a lawful general order (fraternization), making 

false official statements, aggravated sexual assault, and 

abusive sexual contact in violation of Articles 81, 92, 107 and 

120, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 892, 
2

907, and 920.1 The members sentenced the appellant to 

confinement for 42 months and a dishonorable discharge. 

Prior to authentication of the record, the defense filed a 

motion with the military judge seeking a new trial pursuant to 

RULE FOR COURTS-MARTIAL 1210, MANUAL FOR COURTS-MARTIAL, UNITED STATES

(2012 ed.), alleging newly discovered evidence and fraud on the 

court-martial. The military judge granted the defense motion 

and ordered a new trial. On 31 December 2013, we granted an 

appeal by the Government pursuant to Article 62, UCMJ, holding 

that the military judge abused her discretion in finding witness 

statements to be newly discovered evidence or, in the 

alternative, fraud on the court-martial.2

 The court vacated the 

ruling of the military judge and returned the record of trial to 

the Judge Advocate General for further proceedings not 

inconsistent with that opinion. The convening authority (CA) 

approved the sentence as adjudged, and, except for the 

dishonorable discharge, ordered it executed. Now that posttrial processing is complete, we review the case under Article 

66, UCMJ.

The appellant raises four assignments of error (AOEs): (1) 

that a cumulative effect of evidentiary errors allowed the 

Government’s primary witness to mislead the members; (2) that 

the appellant received ineffective assistance of counsel; (3) 

that the charges were unreasonably multiplied; and, (4) that the 

CA’s instruction restricting eligibility for court-martial 

membership frustrated the appellant’s right to a properly 

convened court-martial.

We find merit in the appellant’s fourth AOE, rendering the 

others moot. We will take appropriate action in the decretal 

paragraph. 

 

1 As the offense allegedly occurred on 26 July 2011, the version of Article 

120, UCMJ, in effect from 1 Oct 2007 through 27 June 2012 applies.

2 United States v. Hoyes, No. 201300303, 2013 CCA LEXIS 1075 (N.M.Ct.Crim.App. 

31 Dec 2013), rev. denied, __ M.J. __, No. 14-6004/NA, 2014 CAAF LEXIS 302 

(C.A.A.F. Mar. 25, 2014).
3

Background3

In July 2008, Commander, Naval Air Force Atlantic 

(COMNAVAIRLANT) issued an instruction4 to subordinate commands 

establishing the procedure for nominations of prospective courtmartial members. That instruction directed each subordinate

command to provide a certain number of nominees in the grades of 

O-5, O-4, “LT [Lieutenant] or Below” and “Enlisted (E7/E8/E9).”5

 

The instruction did not call for nominees below E-7, regardless 

of how junior a particular appellant may be, and did not call 

for anyone O-6 or above.6

The appellant avers that members below the pay grade of E7, above the pay grade O-5, and all warrant and chief warrant 

officers were impermissibly and systematically excluded from the 

nomination process by the CA. 

Members Selection

We review claims of error in the selection of court-martial 

members de novo. United States v. Kirkland, 53 M.J. 22, 24 

(C.A.A.F. 2000). We look at three primary factors to determine 

whether an impermissible member selection has taken place:

1. Improper motive in packing a member pool;

2. Systematic exclusion of potential members based on 

rank or other impermissible variable; and,

3. Good faith attempts to be inclusive and open the 

court-martial process to the entirety of the military 

community.

United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). If 

either of the first two criteria is present, the process is 

 

3 This court described the facts surrounding the charged offenses in great 

detail in its 31 December 2013 opinion. Id. at *2-5. As our holding today 

is based solely upon the member selection process, we do not repeat this 

earlier recitation of facts. 

4 COMNAVAIRLANT Instruction 5813.1H, 29 Jul 2008. (Supp. Clemency Request of 

15 May 2004, encl. (1).)

5 Id. at 2. 

6 It is unclear, as the Government concedes, whether the “LT or Below” 

language intended only O-1 to O-3 nominees or permitted nomination of warrant 

and chief warrant officers. Appellee’s Brief of 20 Apr 2015 at 57.
4

impermissible. Id. These criteria are not only considered in 

the actual panel selection process, but also in the process of

presenting nominations to the CA. United States v. Roland, 50 

M.J. 66, 69 (C.A.A.F. 1999). 

In a case of systematic exclusion of members by rank, it is 

the responsibility of the defense to establish the improper 

exclusion. Kirkland, 53 M.J. at 24. Once improper exclusion 

has been shown, the burden shifts to the Government “to 

demonstrate that the error did not ‘materially prejudice the 

substantial rights of the accused.’” Dowty, 60 M.J. at 173 

(quoting Art. 59(a), UCMJ). 

The Government urges us to find waiver in the appellant’s 

failure to raise this issue before trial. See R.C.M. 912(b)(3). 

While such an objection “ordinarily . . . must be made before 

trial,” Dowty, 60 M.J. at 174 (citation and interal quotation 

marks omitted), we may “pass[] over the procedural deficiency to 

reach the substance of the issue.” Id. The seriousness of the 

alleged error and the absence of any evidence that the appellant 

was aware of the COMNAVAIRLANT instruction prior to trial compel 

us to address the appellant’s claim. 

We find the appellant has established that the instruction 

improperly excluded potential members from the selection process 

on the basis of rank. Thus we turn to the Government to 

determine if it has met its burden to show lack of harm——and 

find it has not. The Government has provided no evidence upon 

which this court can conclude the CA properly considered the 

Article 25, UCMJ, factors in selecting the members for the 

court-martial, or that he knew he was free to select members not 

on the list provided by his staff judge advocate (SJA). See 

United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011) 

(similar error found to have created no material prejudice where 

the record reflects that the SJA properly advised the CA that he 

could select members from the SJA-provided nomination list or 

select others as he deemed appropriate, and the CA personally 

selected the members); United States v. Roland, 50 M.J. 66, 69 

(C.A.A.F. 1999) (no prejudice from improper, rank-based 

nomination process where “[t]he record establishes how the 

members were selected, and there is no indication of 

impropriety”); United States v. Nixon, 33 M.J. 433, 435 (C.M.A. 

1991) (exclusion based on rank overcome by “explicit testimony 

of the [CA] as to his compliance with the statutory criteria”). 

The Government, presumably, could have presented testimony 

or affidavits from the CA or the Force Judge Advocate (FJA) to 
5

demonstrate how the member selection process actually occurred.7 

Instead, the Government merely argues that the instruction 

indicates that any nominations are “[i]n addition to 

COMNAVAIRLANT staff members who regularly sit on courtsmartial.”8

 However, absent some evidence that the error in the 

nomination process was actually remedied by the consideration of 

potential members on the CA’s staff, this argument is wanting. 

We therefore find the Government has failed to meet its burden 

of showing the improper exclusion of potential members did not 

materially prejudice the appellant. 

Conclusion 

The findings of guilty and the sentence are set aside. The 

record of trial is returned to the Judge Advocate General of the 

Navy for remand to an appropriate CA with a rehearing 

authorized. 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court

 

7 The Government has now had two opportunities to provide such evidence. 

Trial defense counsel raised this issue in the 15 May 14 Supplemental 

Clemency Request. It was not addressed during post-trial processing, 

however, as the FJA failed to acknowledge the allegation of legal error. See

R.C.M. 1106(d)(4). 

8 Appellee’s Brief at 56.