Senior Judge Ward participated in the decision of this case prior to 

commencing terminal leave.

UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.A. FISCHER, R.Q. WARD, K.M. MCDONALD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

NESTOR L. SUAZOLOPEZ

MACHINIST'S MATE SECOND CLASS (E-5), U.S. NAVY

NMCCA 201300463

GENERAL COURT-MARTIAL

Sentence Adjudged: 21 June 2013.

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

Convening Authority: Commander, Navy Region Mid-Atlantic, 

Norfolk, VA.

Staff Judge Advocate's Recommendation: CDR S.J. Gawronski, 

JAGC, USN.

For Appellant: LT Jessica Ford, JAGC, USN.

For Appellee: Maj Crista Kraics, USMC.

23 December 2014

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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:

 

An officer and enlisted member panel, sitting as a general 

court-martial, convicted the appellant, contrary to his pleas, 

of one specification of desertion, two specifications of 

violating a lawful general order for wrongfully engaging in an 

unduly familiar relationship with a U.S. Navy prospect, six 

specifications of making a false official statement, one 

specification of rape, one specification of aggravated sexual 
2

assault and one specification of wrongful sexual contact, in 

violation of Articles 85, 92, 107, and 120, Uniform Code of 

Military Justice, 10 U.S.C. §§ 885, 892, 907, and 920.1 The 

members sentenced the appellant to reduction to pay grade E-1, 

confinement for five years, forfeiture of $3045.60 pay per month 

for five years, and a bad-conduct discharge. The convening 

authority (CA) disapproved the adjudged forfeitures, approved 

the remaining sentence as adjudged and, except for the punitive 

discharge, ordered it executed. 

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

that the military judge plainly erred when she admitted 

documentary evidence that the appellant was a deserter; (2) that

members below the rank of E-6 were impermissibly excluded in the 

nomination process; (3) that the Government failed to respond to 

a specific defense discovery request for material used by the CA 

in the nomination and selection of members; (4) that the staff 

judge advocate’s recommendation (SJAR) is deficient because it 

incorrectly advised the CA that the trial defense counsel did 

not raise legal error; (5) that the appellant’s convictions for 

rape and wrongful sexual contact are not legally or factually 

sufficient; and, (6) that the civilian defense counsel was 

ineffective.2 

After careful consideration of the record of trial, the 

parties’ pleadings, and the appellant’s assignments of error, we 

conclude that the findings and the sentence are correct in law 

and fact and that no error materially prejudicial to the 

substantial rights of the appellant was committed. Arts. 59(a) 

and 66(c), UCMJ.

 

1 Following a RULE FOR COURTS-MARTIAL 917, MANUAL FOR COURTS-MARTIAL, UNITED STATES

(2012 ed.) motion, the military judge found the appellant not guilty of one 

specification of forcible sodomy, Article 125, UCMJ. The members acquitted 

the appellant of one specification of violating a lawful general order, one 

specification of rape, three specifications of aggravated sexual assault, one 

specification of wrongful sexual contact, and one specification of forcible 

sodomy. Additionally, the military judge found the rape and aggravated 

sexual assault convictions to be an unreasonable multiplication of charges 

and therefore she conditionally dismissed the aggravated sexual assault 

specification (Specification 2 of CH IV) “[to] ripen into full dismissal when 

direct review becomes final pursuant to Article 71, UCMJ.” Record at 1261.

2 AOEs V and VI are raised pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982). We have considered these AOEs and find no error. United 

States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992).
3

Background

The offenses in this case stem from the appellant’s 

interactions with two prospective recruit applicants during his 

tour as a Navy recruiter. Logistics Specialist Third Class 

(LS3) BH testified that in June 2010, during a visit to the 

recruiting office where the appellant worked, the appellant took 

her into a back room to perform a body composition measurement.3 

LS3 BH testified that during the course of performing the 

measurements the appellant pressured her for sex, but that she 

refused. LS3 BH stated the appellant then forced her onto a 

couch and engaged in sexual intercourse with her against her 

will. The Government introduced evidence that multiple semen 

stains found on that couch contained the appellant’s DNA. 

Another recruit applicant, Ms. SS, testified that during 

the course of her application process, the appellant initiated 

inappropriate physical contact and sent her non-professional 

text messages. She further testified that his advances 

culminated in an incident where he ran his hand up her inner 

thigh during a visit to his recruiting office. 

The day prior to the Article 32, UCMJ, Investigation in 

this case, the appellant fled the United States for his native 

Honduras. Further evidence introduced at trial indicated the 

appellant held dual Honduran and United States citizenship. 

Approximately eleven months later, the appellant returned to the 

United States after surrendering himself to the United States 

Embassy in Honduras. These facts gave rise to his conviction 

for desertion. 

Admission of NAVPERS Form 1070/606

Prior to seating the panel, the trial counsel offered 

Prosecution Exhibit 1 into evidence. The third page of PE 1 was 

NAVPERS Form 1070/606 dated 6 March 2013 which documented the 

appellant’s unauthorized absence. Without objection from the 

trial defense counsel, the military judge admitted PE 1 into 

evidence. The “Amplifying Remarks” section of PE1 contained the 

following:

17APR2012: Member reported as deserter this date. 

Member deliberately fled the country prior to his 

previously scheduled Art. 32 hearing and has exhibited 

 

3 COMNAVCRUITCOM INSTRUCTION 5370.1D (27 Jan 2010) requires that same-sex 

individuals perform all body-fat measurements on prospective recruits. 
4

manifest and (sic) intent to desert. 06MAR2013: MBR 

SURR to U.S. Embassy Honduras, 01MAR2013. RTN to 

MILCON 1700, 02MAR2013. ROB TPU NORVA 0020, 

03MAR2013. Retained ONBD for DISCIPACT/Disposition.

In his first AOE, the appellant avers that the military 

judge plainly erred in admitting the above language into 

evidence because it was irrelevant, prejudicial, and offered a 

legal conclusion as to the appellant’s guilt to desertion. 

Applying a plain error analysis we disagree. 

A military judge's decision to admit or exclude evidence is 

reviewed under an abuse of discretion standard. United States 

v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004). However, when an 

appellant objects to the admission of evidence for the first 

time on appeal, we review for plain error. United States v. 

Powell, 49 M.J. 460, 465 (C.A.A.F. 1998). To constitute “plain 

error,” an error must in fact exist, that error must be plain or 

obvious, and the error must materially prejudice a substantial 

right of the appellant. United States v. Lepage, 59 M.J. 659, 

660 (N.M.Ct.Crim.App. 2003).

The NAVPERS Form 1070/606 was clearly relevant and material 

to establish the dates and circumstances of the appellant’s 

absence. PE 11 stipulated to the appellant’s airline flight 

from New York, NY to Honduras (via Atlanta) on 17 Apr 2012 as

well as the appellant’s 1 Mar 2013 surrender to the U.S. Embassy 

in Tegucigalpa, Honduras and his return to U.S. military control 

on 2 Mar 2013 in Miami, FL. Thus, the appellant’s intent was 

the sole element at issue on the desertion charge.4 Although the 

military judge may have erred in admitting the language in PE 1 

referencing desertion and/or the appellant’s intent, we do not 

find such error to be plain and obvious, nor do we find any 

error materially prejudiced a substantial right of the 

appellant. 

While the “Amplifying Remarks” referenced desertion, we 

note that the document itself is entitled “Record of 

Unauthorized Absence” and the terms “Unauthorized Absence” or 

“UA” occur six additional times throughout the document. On its 

face the document is clearly an administrative form used to 

record the appellant’s absence from his unit. Moreover, the 

trial counsel did not make a single reference to the NAVPERS 

form or the Amplifying Remarks language in her opening 

statement, closing arguments, or otherwise throughout the trial. 

 

4 Appellant’s Brief of 27 Feb 2014 at 8. 
5

The facts surrounding the appellant’s absence were fully before 

the members and the military judge properly instructed them on 

the elements for desertion and unauthorized absence as well as 

the difference between the two offenses. The members 

acknowledged and understood the military judge’s instruction in 

this regard.5 Under these circumstances, we disagree with the 

appellant’s assertion that admission of the Amplifying Remarks 

language constituted plain error.

Panel Member Selection

In his second AOE the appellant avers that the CA 

impermissibly and systematically excluded members below the pay 

grade E-6 from the nomination process. On 22 March 2013, 

Commander, Naval Region Mid-Atlantic issued an instruction to 

subordinate commands establishing the procedure for nominations 

of prospective court-martial members. The instruction directed 

each subordinate command to provide a certain number of nominees 

in the ranks of E-6 through O-6. The instruction did not call 

for nominees below E-6, regardless of the accused’s pay grade. 

We review the proper selection of a court-martial panel 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 courtmartial 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 

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 established, the burden is placed on 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).

 

5 Record at 1058. 
6

Assuming that the appellant established a systematic 

exclusion of members based on the quotas set forth in the 

instruction, we assess for material prejudice to the appellant. 

In reviewing this case we find: (1) no evidence that the 

instruction was issued with an improper motive; (2) no evidence 

that the CA had an improper motive when detailing the members 

assigned to the appellant's court-martial; (3) the CA was a 

person authorized to convene a general court-martial; (4) the CA 

was properly advised of his Article 25 responsibilities, and 

knew that he could pick any member within his Region’s 

claimancy, not just those who had been nominated; (5) the court 

members were personally chosen by the CA from a pool of eligible 

candidates; (6) the CA was specifically aware that he could 

select members in the appellant’s paygrade of E-5, but based in 

part on the practical concern of ensuring all members were 

senior to the appellant, he chose to select members E-6 and 

above6; and, (7) all court members met the criteria in Article 

25, UCMJ. Under these circumstances, we are convinced that the 

appellant’s case was heard by a fair and impartial panel, and 

that any error in this case was harmless. 

Discovery of Member Selection Matters

In the course of the discovery process, the civilian 

defense counsel requested all information which the CA and his 

advisors used in the nomination of prospective members and in 

the final selection of the court members for the court-martial 

orders issued in this case. The instruction discussed above was 

not provided to the defense, despite this request, and the 

appellant asserts this failure constitutes prejudicial error.7 

Through Article 46, UCMJ, a military accused is granted the 

“equal opportunity to obtain witnesses and other evidence in 

accordance with such regulations as the President may 

prescribe.” Moreover, upon request, an appellant is permitted 

to inspect “papers . . . within the possession, custody, or 

control of military authorities . . . which are material to the

preparation of the defense[.]” RULE FOR COURTS-MARTIAL

701(a)(2)(A), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). 

When determining whether there has been a discovery 

violation, this court must determine whether the evidence at 

 

6 Government Motion to Attach of 13 Jun 2014, Affidavit of Rear Admiral T.G. 

Alexander, USN (Ret).

7 We note that the members questionnaires provided to the defense referenced 

the instruction. Appellate Exhibit LIV. 
7

issue was subject to discovery and, if so, determine what effect 

the failure to disclose had on the appellant’s trial. United 

States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004). To be 

eligible for defense discovery a document must be in the 

Government’s possession or control and material to the 

preparation of the defense. R.C.M. 701(a)(2)(A). When there 

has been a discovery violation, we test that violation for 

prejudice. In cases where the appellant either did not make a 

discovery request or made only a general request for discovery, 

the Government has the burden of proving that the error was 

harmless. However, in those cases where the appellant made a 

specific request for the undisclosed information, the Government 

must show that the error was harmless beyond a reasonable doubt. 

Roberts, 59 M.J. at 327. 

Although the appellant did not ask for the instruction in 

question by name, his request was specific enough to trigger the 

heightened requirement of proof beyond a reasonable doubt. 

However, even applying that higher standard, we find against the 

appellant. For the same reasons articulated above, we find that 

despite the discovery violation, the appellant was tried by a 

fair and impartial panel, and that the discovery error was 

harmless beyond a reasonable doubt. 

Failure to Comment on Legal Error in SJAR 

In AOE IV, the appellant asserts that it was prejudicial 

error for the staff judge advocate (SJA) to not address the 

defense’s clemency submission that challenged the findings of 

guilty to desertion, rape and wrongful sexual contact in the 

SJAR. As a remedy, the appellant requests that this case be 

remanded to the CA for new post-trial processing. 

R.C.M. 1106(d)(4) “requires that ‘the staff judge advocate 

. . . state’ in his recommendation ‘whether, in’ his ‘opinion, 

corrective action on the findings or sentence should be taken 

when an allegation of legal error is raised in matters submitted 

under R.C.M. 1105 or when otherwise deemed appropriate by the 

staff judge advocate.’” United States v. Hill, 27 M.J. 293, 295 

(C.M.A. 1988). An analysis or rationale for an SJA’s statements 

concerning legal error is not required and a response may merely 

consist of either a statement of agreement or disagreement with 

any legal error raised by the appellant. R.C.M. 1106(d)(4). 

When the defense raises an allegation of legal error in a 

clemency submission, the SJA must advise the CA whether 

corrective action is required. R.C.M. 1106(d)(4); see also

Hill, 27 M.J. at 296. 
8

In most instances, failure of the SJA to prepare a 

recommendation with the contents required by R.C.M. 1106(d)(4) 

will be prejudicial and will require remand of the record for 

preparation of a suitable recommendation for the CA. Hill, 27 

M.J. at 296. However, if we are convinced that under the 

particular circumstances, a properly prepared recommendation 

would have no effect on the CA – the burden in this regard being 

on the Government – remand to the CA is unnecessary. Id. 

Accordingly, if a defense allegation of legal error is presented 

after trial and clearly has no merit, the accused is not 

entitled to relief merely because of failure by the SJA to state 

specifically in the SJAR that the assigned error lacked merit. 

Id. 

In this case we note that the SJA prepared an addendum 

following receipt of the civilian defense counsel’s post trial 

submission and advised the CA that he was required to consider 

the submitted matters in determining whether to approve or 

disapprove any of the findings of guilty and his action on the 

sentence.8 The SJA further recommended that the CA approve the 

sentence as adjudged. 

We find that the evidence was legally and factually 

sufficient to support the findings of guilty beyond a reasonable 

doubt to the desertion, rape, and wrongful sexual contact 

specifications. Thus, we find this issue without merit and 

further find no prejudice to the appellant by the SJA’s failure 

to comment on the allegations of error. Further advice from the 

SJA would not have had an effect on the CA in this case. 

Because the appellant was not prejudiced, returning this courtmartial to the CA is not necessary.

Conclusion

The approved findings as conditionally modified and the 

sentence as approved by the CA are affirmed. The conditional 

dismissal of Specification 2 under Charge IV shall ripen to a 

full dismissal when direct review becomes final pursuant to 

 

8 The SJA specifically stated in the addendum that the defense has not raised 

any allegations of legal error. 
9

Article 71(c), UCMJ, provided that the rape conviction is not 

set aside during any subsequent appellate review. See United 

States v. Britton, 47 M.J. 195, 204 (C.A.A.F. 1997) (Effron, J., 

concurring).

For the Court

 

 

 

R.H. TROIDL

Clerk of Court