UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201400067

_________________________

UNITED STATES OF AMERICA

Appellee

v.

MATTHEW P. HOFFMANN

Corporal (E-4), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Keith A. Parrella, USMC.

Convening Authority: Commanding General, II Marine 

Expeditionary Force, Camp Lejeune, North Carolina.

Staff Judge Advocate’s Recommendation: Major Kara J. Zummo, 

USMC.

For Appellant: Commander Donald R. Ostrom, JAGC, USN; Captain 

Thomas Fricton, USMC.

For Appellee: Major Brian L. Farrell, JAGC, USN; Lieutenant 

Megan Marinos, JAGC, USN; Captain Sean M. Monks, USMC.

_________________________

Decided 9 July 2018

_________________________

Before GLASER-ALLEN, HUTCHISON, and SAYEGH, 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.

_________________________

GLASER-ALLEN, Chief Judge:

A panel of officer members sitting as a general court-martial convicted the 

appellant, contrary to his pleas, of indecent liberties with a child and child 

enticement, in violation of Articles 120 and 134, Uniform Code Military 
United States v. Hoffmann, No. 201400067

2

Justice (UCMJ), 10 U.S.C. §§ 920 and 934.

1 The members sentenced the 

appellant to ten years’ confinement, reduction to paygrade E-1, total 

forfeiture of pay and allowances, and a dishonorable discharge. The CA

approved seven years’ confinement, reduction to paygrade E-1, total 

forfeiture of pay and allowances, and a dishonorable discharge. With the 

exception of the discharge, the convening authority (CA) ordered the 

approved sentence executed.

The appellant avers six assignments of error (AOE):

2

(1) the military judge abused his discretion by admitting propensity 

evidence under MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 414, MANUAL 

FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.); 

(2) the military judge erred when he failed to instruct the members on the 

government’s burden to prove the uncharged offenses occurred by a 

preponderance of evidence;3

(3) the military judge erred when he did not extend his ruling that 

Colonel (Col) W was disqualified from providing input on the Article 34 letter 

as staff judge advocate to include other areas of pretrial advice; 

(4) the military judge should have recused himself; 

(5) the appellant’s sentence is inappropriately severe and highly disparate 

from a closely related case;4 and 

(6) there is error requiring corrective action in the appellant’s Report of 

Results of Trial due to an incorrect Defense Incident-Based Reporting System

(DIBRS) code.

5

Having carefully considered the record of trial and the parties’ 

submissions, we are convinced that the findings and the sentence are correct 

 

1 The members acquitted the appellant of attempted sodomy of a child.

2 The AOEs have been renumbered for ease of discussion.

3 This supplemental AOE was filed prior to our 21 February 2018 oral argument 

held at George Washington University Law School.

4 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

5 In accordance with our recent decision in United States v. Baratta, 77 M.J. 691, 

695 (N-M. Ct. Crim. App. 2018), we summarily reject the appellant’s final AOE as the 

Report of Results of Trial in this case accurately reflects the findings and sentence.

(“[DIBRS codes] are neither findings nor parts of a sentence, thus we do not have the 

authority to act upon them.”) Id. at 695 (citing Article 66(c), UCMJ). See United

States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
United States v. Hoffmann, No. 201400067

3

in law and fact and find no error materially prejudicial to the substantial 

rights of the appellant. Arts. 59(a) and 66(c), UCMJ. 

I. BACKGROUND

This case is before us for a second time. On 23 August 2013, the appellant 

was convicted of offenses involving “Ryan” and possession of child 

pornography.6 On 18 February 2016, our superior court set aside the findings 

and sentence, dismissing the child pornography charges with prejudice and 

authorizing a rehearing on the charges involving Ryan.7

In April 2011, a man in a silver sport utility vehicle (SUV) with a yellow 

New York license plate drove by Ryan, a 13-year-old boy, several times while 

Ryan was walking home from school. On the third pass, the man pulled up 

and asked Ryan if he wanted a “quickie.”8 Ryan declined, and the man asked 

if Ryan knew what a “quickie” was. Ryan said “no,” and the man drove 

around the block again. The man drove up to Ryan a fourth time and asked, 

“[a]re you sure,” and “[y]ou’ll like it.”9 Ryan again declined and ran home. He

immediately reported the incident and provided a description of the vehicle to 

the local Jacksonville, North Carolina Police Department. Police were unable 

to locate the SUV driver at that time.

In September 2011, a man in a light colored SUV slowly drove by Alex, a 

13-year-old boy, while he was walking home from school on board Camp 

Lejeune, North Carolina. On the first two passes, Alex noticed the man was 

wearing a desert camouflage uniform and making a gesture with his hand 

that Alex took to indicate fellatio. The third time the man drove by, he made 

the same gesture and asked Alex if he wanted to go for a ride. Alex declined,

and the man drove away. 

Also in about September 2011, a man in a silver SUV drove by Pete, a 10-

year-old boy, while he was walking home from school on board Camp 

Lejeune. Pete noticed the man drove by making a similar indecent gesture to 

indicate fellatio. Pete noticed the SUV had a yellow license plate and spare 

wheel on the back, and the male driver was wearing a green military 

undershirt. 

In November 2011, Alex saw the SUV that had approached him in 

September in the same vicinity of Camp Lejeune while he was walking home 

 

6 United States v. Hoffmann, 74 M.J. 542 (N-M. Ct. Crim. App. 2014). He was 

acquitted of similar offenses involving “Alex” and “Pete.” All names are pseudonyms.

7 United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016).

8 Record at 423-26.

9 Id.
United States v. Hoffmann, No. 201400067

4

from school. He took a picture of it and immediately called his mother, who 

promptly drove to his location. While returning home, Alex and his mother 

passed the SUV and began following it. A high speed chase ensued, but Alex’s 

mother was unable to keep up with the SUV. She noticed the SUV was a 

“RAV4” with a hard case on the spare tire and yellow New York license 

plate.

10

Pete’s mother observed the on-base car chase, wrote down the SUV’s 

license plate number, and provided it to Alex’s mother.

11 Alex’s mother called

her husband with the description of the car and the license plate number. He

was working on Camp Lejeune, and soon thereafter he located the SUV,

followed it to a work site, and notified base police. Minutes later security 

arrived, identified the vehicle as belonging to the appellant, entered the 

appellant’s workplace, and took the appellant into custody. 

While the Naval Criminal Investigative Service (NCIS) was investigating 

the September and November on-base incidents involving Alex and Pete, they 

notified local police and became aware of the April off-base incident involving 

Ryan. Now having a suspect, the Jacksonville Police Department conducted a 

photographic line-up with Ryan, who identified the appellant with “95 

percent certainty” as the man driving the SUV who enticed him.12

II. DISCUSSION

A. Uncharged propensity evidence

The appellant argues the military judge erred when admitting uncharged 

propensity evidence of his prior acquittals under MIL. R. EVID. 414 by 

improperly conducting the MIL. R. EVID. 403 balancing test. We disagree.

1. Admissibility of uncharged misconduct 

 Three Military Rules of Evidence generally govern the relevance and 

admissibility of evidence of conduct already litigated in a prior court-martial. 

United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United States v. Hicks, 

24 M.J. 3, 8 (C.M.A. 1987). First, “[e]vidence is relevant if: (a) it has any 

tendency to make a fact more or less probable than it would be without the 

evidence; and (b) the fact is of consequence in determining the action.” MIL.

R. EVID. 401. “The military judge may exclude relevant evidence if its 

probative value is substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading the members, 

 

10 Id. at 318.

11 The license plate number recorded by Pete’s mother nearly matched the 

appellant’s plate number, with the exception of one letter. Record at 361-62.

12 Record at 390, 441; Prosecution Exhibit 4, 5.
United States v. Hoffmann, No. 201400067

5

undue delay, wasting time, or needlessly presenting cumulative evidence.” 

MIL. R. EVID. 403. “Evidence of a crime, wrong, or other act is not admissible 

to prove a person’s character in order to show that on a particular occasion 

the person acted in accordance with the character.” MIL. R. EVID. 404(b)(1). 

But “[t]his evidence may be admissible for another purpose, such as proving 

motive, opportunity, intent, preparation, plan, knowledge, identity, absence 

of mistake, or lack of accident” MIL. R. EVID. 404(b)(2). 

In United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989), the Court of

Military Appeals articulated a three-part test for the admissibility of 

uncharged misconduct under MIL. R. EVID. 404(b), including prior misconduct 

of which the accused was acquitted:

1. Does the evidence reasonably support a finding by the court members 

that the appellant committed prior crimes, wrongs, or acts? 

2. What “fact . . . of consequence” is made “more” or “less probable” by the 

existence of this evidence? 

3. Is the “probative value . . . substantially outweighed by the danger of 

unfair prejudice”? 

Id. at 109 (citations omitted).

When an accused has been acquitted of conduct the government seeks to 

present as evidence in a subsequent case, the acquittal is a factor in the test 

for admissibility. “The fact of the prior acquittal may diminish the probative 

value of the evidence, however, and should be considered by the military 

judge when determining whether ‘probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, or 

misleading the members, or by considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence.’” Hicks, 24 M.J. at 8-9

(citing to MIL. R. EVID. 403) (additional citations omitted). An accused also 

has the right to prove that he or she was previously acquitted of the acts 

admitted into evidence under MIL. R. EVID. 404(b). United States v. Cuellar, 

27 M.J. 50, 56 (C.M.A. 1988).

2. MIL. R. EVID. 414.

We review the admissibility of evidence under MIL. R. EVID. 414 for an 

abuse of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). 

“‘The abuse of discretion standard is a strict one, calling for more than a mere 

difference of opinion. The challenged action must be arbitrary, fanciful, 

clearly unreasonable, or clearly erroneous.’” United States v. Hurtado, No. 

201500051, 2016 CCA LEXIS 112, at *5-6, unpublished op. (N-M. Ct. Crim. 

App. 29 Feb 2016) (quoting United States v. White, 69 M.J. 236, 239 (C.A.A.F. 

2010)), rev. denied, 76 M.J. 348 (C.A.A.F. 2017).
United States v. Hoffmann, No. 201400067

6

MIL. R. EVID. 414 permits the military judge to admit evidence that the 

accused committed “any other offense of child molestation” and “may be 

considered on any matter to which it is relevant.” MIL. R. EVID. 414. Thus, 

“inherent in [MIL. R. EVID. 414] is a general presumption in favor of 

admission.” United States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005) (citation 

omitted).13

Here the military judge combined his MIL. R. EVID. 414 propensity and 

MIL. R. EVID 404(b) uncharged misconduct analysis into a single ruling for 

efficiency. The same acquittal evidence was at issue under both evidentiary 

rules, and the MIL. R. EVID. 414 requirements incorporate the key aspects of 

the MIL. R. EVID. 404(b) test. 

3. MIL. R. EVID. 414 threshold requirements

Before admitting evidence under MIL. R. EVID. 414, three initial threshold 

requirements must be met: (1) the accused is charged with an offense of child 

molestation within the meaning of MIL. R. EVID. 414(d); (2) the proffered 

evidence is that the appellant committed another offense of child molestation

within the meaning of MIL. R. EVID. 414(d); and (3) the proffered evidence is 

logically relevant under both MIL. R. EVID. 401 and 402. United States v. 

Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013) (citations omitted). To meet the

second requirement, the military judge must conclude that the members 

“could find by [a] preponderance of the evidence that the offenses occurred[.]” 

United States v. Wright, 53 M.J. 476, 483 (C.A.A.F. 2000) (citing Huddleston 

v. United States, 485 U.S. 681, 689-90 (1988)).

The military judge found the threshold requirements were met both on 

the record and in his written ruling. Regarding the first two prongs, he noted 

that during an Article 39(a), UCMJ, session, the defense conceded that the 

first two requirements under MIL. R. EVID. 414 were met “since at least one 

of the charged allegations, as well as the uncharged misconduct, fall within

the definition of ‘child molestation’ under [MIL. R. EVID.] 414(d).”14 The 

 

13 The Berry court was specifically dealing with MIL. R. EVID. 413, but the court’s 

analysis applies to both MIL. R. EVID. 413 and 414. See United States v. Tanner, 63 

M.J. 445, 448-49 (C.A.A.F. 2006) (noting the similar legislative history with MIL. R.

EVID. 413, its “companion rule,” and finding that MIL. R. EVID. 414, like MIL. R. EVID. 

413, establishes a presumption in favor of admissibility of evidence of prior similar 

crimes in order to show predisposition to commit the designated crimes); United 

States v. Luna, No. 201500423, 2017 CCA LEXIS 314, at *13-18, unpublished op. (NM. Ct. Crim. App. 9 May 2017), aff'd, _ M.J. _ . 2018 CAAF LEXIS 65 (C.A.A.F. Jan.

10, 2018) (summary disposition) (analyzing propensity evidence admitted under MIL.

R. EVID. 414 using the same standards applied to MIL. R. EVID. 413).

14 Appellate Exhibit (AE) XLVII at 3 n.4. See also Record at 159-60. The military 

judge went on to note that MIL. R. EVID. 414(d)(2)(A) and (G) define “child 
United States v. Hoffmann, No. 201400067

7

military judge was satisfied that Alex and Pete’s expected testimony was 

sufficient to meet the preponderance standard, explaining that “the 

government offered documentary evidence in support of their response to this 

motion including statements and depositions from all three minors, as well as 

statements from [Alex’s] and [Pete’s] parents.”15 He found that based on this 

evidence, the members could find by a preponderance of the evidence that the 

offenses alleged by Alex and Pete occurred and were committed by the 

appellant—despite the prior acquittals. 

This evidence not only met the first two prongs of the MIL. R. EVID. 414

threshold requirements, but also the first prong of the Reynolds MIL. R. EVID. 

404(b) test. Recognizing this overlap in the admissibility tests, the military 

judge found the MIL. R. EVID. 414 third threshold prong of logical relevance 

mirrored the second Reynolds prong regarding facts of consequence. He 

determined the acquittal evidence met both requirements:

Additionally, this evidence may be relevant for its tendency to 

show motive, intent, common scheme or plan, or absence of 

mistake. Moreover, this evidence also provides the members 

with an understanding as to what the accused meant by “a 

quickie” since he made a hand gesture associated with fellatio 

when allegedly soliciting [Alex] and [Pete]. Finally, the 

evidence provides a complete picture as to how law 

enforcement first came to suspect the accused.16 

Thus, the military judge concluded the evidence met all three MIL. R. EVID. 

414 threshold requirements as well as the first two prongs of the Reynolds

test.

4. MIL. R. EVID. 403 balancing test and the Wright/Berry factors

Once the evidence meets the three threshold requirements under MIL. R. 

EVID. 414, “the military judge is constitutionally required to also apply a 

balancing test under [MIL. R. EVID.] 403” to determine whether the probative 

value of the evidence is substantially outweighed by the danger of unfair 

prejudice. Solomon, 72 M.J. at 179-80 (citing Berry, 61 M.J. at 95). When 

conducting this balancing test, “the military judge should consider the 

following non-exhaustive factors:” 

 

molestation” as “any conduct prohibited by Article 120 and committed with a child, or 

an attempt to engage in [said conduct] MIL. R. EVID. 414.” AE XLVII at 3 n.5 

(internal quotation marks omitted)

15 AE XLVII at 3. 

16 Id. at 4.
United States v. Hoffmann, No. 201400067

8

(1) strength of proof of the prior act (i.e., conviction versus gossip); 

(2) probative weight of the evidence; 

(3) potential for less prejudicial evidence; 

(4) distraction of the factfinder; 

(5) time needed for proof of the prior conduct;

(6) temporal proximity; 

(7) frequency of the acts; 

(8) presence or lack of intervening circumstances; and 

(9) the relationship between the parties.

Id. at 180 (citing Wright, 53 M.J. at 482). This analysis of the MIL. R. EVID. 

403 factors also encompasses the third prong of the Reynolds MIL. R. EVID. 

404(b) test.

 If the “balancing test requires exclusion of the evidence, the presumption 

of admissibility [that is inherent within MIL. R. EVID. 413] is overcome.” 

Berry, 61 M.J. at 95 (citing Wright, 53 M.J. at 482-83). “When a military 

judge articulates his properly conducted [MIL. R. EVID.] 403 balancing test on 

the record, the decision will not be overturned absent a clear abuse of 

discretion.” Solomon, 72 M.J. at 180 (citing United States v. Manns, 54 M.J. 

164, 166 (C.A.A.F. 2000)).

a. Strength of proof of the prior act (i.e., conviction versus gossip)

 In his written findings addressing the first Wright factor, the military 

judge held the members could find the offenses alleged by Alex and Pete

occurred by a preponderance of the evidence and that their anticipated incourt testimony and sworn depositions were more than mere gossip. He 

acknowledged that the appellant was acquitted of the conduct at his first 

trial, that the boys were and would be subject to “stringent defense 

questioning during sworn depositions,” would again be subject to crossexamination, and recognized that admission of this evidence was not barred 

by the prior acquittals.

17

 We agree. The preponderance of evidence standard in this factor is a much 

lower showing than the beyond a reasonable doubt standard considered by 

the members at the first trial. The trial judge carefully weighed the 

acquittals, the additional evidence provided on the motion, and the necessary 

crucible of cross-examination in the rehearing.

 

17 AE XLVII at 4.
United States v. Hoffmann, No. 201400067

9

b. Probative weight of the evidence 

 In addressing the probative weight of the evidence, the military judge 

stated that the evidence was probative “not only to the accused’s propensity 

to engage in this conduct, but also as to motive, intent, common scheme or 

plan, or absence of mistake” related to the MIL. R. EVID. 404(b) test.18 He also 

noted it was important for the members so they would understand what the 

appellant meant by “a quickie” and how the appellant came to the attention 

of law enforcement.19 Further, he concluded that the probative weight was 

heightened by the similarities to the charged offense. All three alleged 

victims were young boys approached by a man driving a silver or light colored

SUV while walking home alone home from school. The driver solicited sexual 

acts using hand gestures and verbal comments while driving by them.

 We agree with the military judge’s assessment of the probative value of 

this evidence. The conduct during the three incidents was strikingly similar, 

making the evidence highly probative, but not unfairly prejudicial.20 This 

type of evidence is exactly what MIL. R. EVID. 414 was intended to admit.

Though uncharged misconduct at this trial, it also demonstrates permissible 

government theories of culpability. The members were informed of the prior 

acquittals and properly instructed on how to use the evidence for propensity 

and motive, intent or common scheme consideration.

c. Potential for less prejudicial evidence; distraction of the factfinder; time 

needed for proof of the prior conduct 

 Like the first two Wright factors above, we agree with the military judge’s 

conclusion that there was no less prejudicial evidence. Like the military 

judge, we find distraction to the factfinder and time needed to prove the prior 

conduct to be linked since the primary consideration for both was Alex’s and 

Pete’s testimony. The judge noted in his ruling that he was sensitive to 

overuse of evidence of the prior acquittals and would limit distraction 

through tailored examinations and limiting instructions. He followed through 

on this commitment at trial, ensuring a minimum amount of time was 

focused on propensity and providing limiting instructions during both the 

testimony and in his final instructions. 

 The unique facts of this case also properly allowed the prior acquittal 

evidence under MIL. R. EVID. 404(b). While the trial counsel did discuss the 

three boys in his opening statement and closing argument, his theme was 

 

18 Id. 

19 Id.

20 See United States v. Oakley, No 201200299, 2015 CCA LEXIS 154, at *33-34 

(N-M. Ct. Crim. App. 21 Apr 2015).
United States v. Hoffmann, No. 201400067

10

focused much more on opportunity, modus operandi, and pattern of the 

appellant’s behavior given the similarities of the encounters rather than 

propensity. The appellant contends that this government emphasis was 

unfairly prejudicial, but his defense theory of misidentification actually made 

the pattern theme under MIL. R. EVID. 404(b) arguably more relevant to the 

members than the same information admitted as propensity evidence. The 

evidence did not inflame the members or cause confusion, rather it 

highlighted the three incidents for the members to consider along with the 

rest of the evidence.

d. Temporal proximity; frequency of the acts; presence or lack of 

intervening circumstances; relationship between the parties

 Concerning these Wright factors, the military judge’s written findings 

noted that Alex and Pete made allegations days apart and approximately five 

months after the charged misconduct. There were no intervening 

circumstances that would diminish the probative value of the evidence, and

the parties were not related. The military judge concluded that these factors 

weighed in favor of admission. 

 Again, we agree. The temporal proximity is highly probative given their 

similarities but not unfairly so. 

 We find that the military judge properly conducted the MIL. R. EVID. 403 

balancing test and neither erred nor abused his discretion by admitting the 

prior acquittals under either MIL. R. EVID. 414 or 404(b). His measured

analysis on the record and in his written ruling was reasonable and not 

clearly erroneous. The similarities between the two incidents from the prior 

trial provided a strong nexus to the charged offenses, and the military judge 

exercised appropriate sensitivity to the acquittal evidence.21 He ensured the 

members were aware of the acquittals in his instructions (over government 

objection) and limited questioning as appropriate to avoid undue delay and 

confusion of the members. 

 

21 See United States v. Griggs, 51 M.J. 418, 420 (C.A.A.F. 1999) (prior acquittal 

evidence is not per se barred as evidence of prior acts); United States v. James, 63 

M.J. 217, 221 (C.A.A.F. 2006) (no temporal limitation on the admissibility of specific 

uncharged child molestation misconduct; it can be prior or subsequent to the charged 

acts as MIL. R. EVID. 414 evidence admissibility should be liberally construed); and 

United States v. Morrison, 52 M.J. 117, 122-23 (C.A.A.F. 1999) (where evidence is 

offered to show modus operandi, there must be a high degree of similarity between 

the extrinsic offense and the charged offense).
United States v. Hoffmann, No. 201400067

11

 B. Military judge’s instructions 

The appellant next claims the military judge erred by failing to instruct 

the members that they were required to find the uncharged propensity 

misconduct occurred by a preponderance of the evidence. We disagree.

1. The instruction

The military judge relied in part on United States v. Williams, 75 M.J. 

621 (A. Ct. Crim. App. 2016)22 in determining that “the military judge does 

not have to instruct that the members find by preponderance of the evidence 

that the propensity evidence did or did not occur pursuant to [MIL. R. EVID.]

413 or 414[.]”

23 After informing defense counsel that he intended to use the 

defense’s proposed limiting instruction except for that sentence, he asked if 

the defense agreed to the limiting instruction. The trial defense counsel 

replied:

DC: With the one strike, yes, sir.

MJ: No objections to any other aspect of it?

DC: No, sir.24

Before their deliberations on findings, the military judge instructed the 

members concerning their use of the uncharged acquittal evidence. They 

could consider the uncharged sexual misconduct pursuant to MIL. R. EVID.

414, as evidence of the appellant’s propensity to commit the charged sexual 

misconduct, and pursuant to MIL. R. EVID. 404(b), as evidence of the 

appellant’s identity, motive or common scheme or plan: 

You heard evidence that the accused may have committed 

other offenses upon [Alex] and [Pete]. The accused is not 

charged with these other offenses and was previously acquitted 

of these offenses at a prior proceeding. You may, however, 

consider the evidence of those offenses involving [Alex] and 

[Pete] for its bearing on any matter to which it is relevant in 

relation to the charged offenses. You may consider the evidence 

related to [Alex] and [Pete] for its tendency, if any, to show the 

accused’s propensity or predisposition to engage in similar 

offenses, as well as its tendency, if any, to establish among 

other possible things, identity, motive, or common scheme or 

 

22 The case was reversed and remanded in light of United States v. Hills, 75 M.J. 

350 (C.A.A.F 2016) due to charged propensity misconduct which is not the issue in 

the present case. United States v. Williams, 75 M.J. 430 (C.A.A.F. 2016).

23 Record at 490.

24 Id. at 518.
United States v. Hoffmann, No. 201400067

12

plan. You may not, however, convict the accused solely because 

you believe he committed these other offenses, or solely 

because you believe the accused has a propensity or 

predisposition to engage in similar acts. In other words, you 

cannot use this evidence to overcome a failure of proof in the 

government’s case, if you perceive any to exist.25

2. The law

“Whether a panel was properly instructed is a question of law we review 

de novo.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (citation 

omitted). Whether an appellant has waived an issue is a question of law we 

review de novo. United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017)

(citation omitted). 

“Whereas forfeiture is the failure to make the timely assertion of a right, 

waiver is the intentional relinquishment or abandonment of a known right.” 

United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (citations and 

internal quotation marks omitted). When an appellant has “intentionally 

waive[d] a known right at trial, it is extinguished and may not be raised on 

appeal.” Id. Forfeited objections to evidence are reviewed for plain error, 

which exists where: (1) an error was committed; (2) the error was plain, clear, 

or obvious; and (3) the error resulted in material prejudice to substantial 

rights. United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007) (citing 

United States v. Powell, 49 M.J. 460, 463–65 (C.A.A.F. 1998)).

Here the appellant concedes he did not object to the instructions at trial 

but argues the plain error standard applies.26 Assuming without deciding 

that the appellant forfeited, rather than waived, his right to object to the 

military judge’s instructions, we find no error. 

3. Plain error analysis

The appellant contends that the military judge’s instructions should have 

contained the following language: “[t]his evidence may have no bearing on 

your deliberations unless you first determine by a preponderance of the 

evidence, that is more likely than not, these uncharged offenses occurred.”27

The military judge discussed the defense’s request to specifically instruct 

the members regarding their determination of whether the uncharged 

 

25 Id. at 615.

26 United States v. Davis, 76 M.J. 224, 229 (C.A.A.F. 2017).

27 Appellant’s Supplemental Brief of 16 Feb 2018 at 3 (emphasis added) (citing 

Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at ¶ 7-13-1 (20 Mar 

2015)).
United States v. Hoffmann, No. 201400067

13

propensity offenses occurred and by what standard. However, he believed 

procedurally the initial requirement had been fulfilled once he made the 

admissibility analysis under MIL. R. EVID. 414 and explained to the members 

that the appellant had been acquitted of those offenses.28 Although he 

partially relied on Williams, he also compared the requested instruction to 

more traditional uncharged misconduct instructions under MIL. R. EVID.

404(b). He noted the members are generally permitted to give their own 

assignment of weight to uncharged MIL. R. EVID. 404(b) evidence once the 

judge has properly determined admissibility.

In post-Hills courts-martial, military judges no longer allow charged 

evidence to act as propensity evidence for other charged offenses.29 While 

Hills focused on charged misconduct establishing propensity evidence for 

other charged misconduct—which is not the issue here—the instructions 

were found to be confusing in part due to similar language the appellant now 

suggests was missing in his case. We recognize that the charged propensity 

evidence at issue in Hills carried a much greater risk of muddled instructions 

than what the appellant proposed here regarding uncharged misconduct, but 

he offers no authority for his position that the military judge must instruct 

the members using the preponderance standard.

30

Accordingly, we find that the military judge did not commit error, and 

certainly not plain or obvious error, when instructing the members on how to 

use the uncharged misconduct evidence as both uncharged misconduct and 

propensity evidence. Notably, after our superior court’s decision in Hills, the 

Military Judge’s Benchbook was revised and the language instructing the 

 

28 Record at 490, 522, 615.

29 Hills, 75 M.J. at 357 (“Quite simply, we hold not only that charged offenses are 

not properly admitted under M.R.E. 413 to prove a propensity to commit the charged 

offenses, but also that the muddled accompanying instructions implicate 

‘fundamental conceptions of justice’ under the Due Process Clause by creating the 

risk that the members would apply an impermissibly low standard of proof, 

undermining both ‘the presumption of innocence and the requirement that the 

prosecution prove guilt beyond a reasonable doubt,’ Wright, 53 M.J. at 481.”

30 United States v. Schroder, 65 M.J. 49, 54, 56 (C.A.A.F. 2007) (finding the 

military judge is not “required to disaggregate the [414] instruction” and that a MIL.

R. EVID. 414 instruction must state “the introduction of such propensity evidence 

does not relieve the government of its burden of proving every element of every 

offense charged. Moreover, the factfinder may not convict on the basis of propensity 

evidence alone”). We note both of these requirements were contained in the military 

judge’s instructions here.
United States v. Hoffmann, No. 201400067

14

members to determine by “a preponderance of the evidence, that is more 

likely than not, these uncharged offenses occurred” was omitted.31

This revision brought the Benchbook instructions into alignment with 

those applicable in the Article III federal courts.32 The military judge’s 

instruction—over government objection—reminding the members that the 

appellant was acquitted of the uncharged misconduct/propensity evidence 

ensured that the members understood the rules of its use, the presumption of 

innocence on the charged offenses, and the requirement that the prosecution 

prove guilt beyond a reasonable doubt.33 The appellant was charged with 

three offenses but convicted of two—which reinforces our belief that the 

members understood and properly followed the judge’s instructions. 

C. Improper referral 

In his third AOE, the appellant argues the military judge erred when he 

failed to preclude Col W, the staff judge advocate (SJA), from participation in 

areas of pretrial decision-making, and that such an error resulted in the 

improper referral of the appellant’s charges to general court-martial. We 

disagree. 

Article 34, UCMJ, and RULE FOR COURTS-MARTIAL (R.C.M.) 406 require 

the CA to submit all preferred charges to an SJA for “consideration and 

advice” before referring any charge to a general court-martial for trial. MCM,

UNITED STATES (2012). Such pretrial advice must be provided in writing and 

signed by the SJA to enable the CA to proceed. R.C.M. 406(b).34 Whether an 

individual is disqualified from acting as an SJA is a legal question reviewed 

de novo. United States v. Stefan, 69 M.J. 256, 258 (C.A.A.F. 2010).

 

31 See Dept. of the Army Pamphlet 27-9 at 1105-1106 (10 Sep. 2014, 20 Mar. 

2015, and Feb. 2018). This instruction is commonly referred to by practitioners as “7-

13-1. Other Crimes, Wrongs, or Acts Evidence.” Although the Benchbook is not 

legally binding, it does highlight military justice practitioners’ commonly held beliefs 

on the state of the UCMJ.

32 Huddleston, 485 U.S. at 690 (a trial court “simply examines all the evidence in 

that case and decides whether a jury could reasonably find the conditional fact . . . by 

a preponderance of the evidence”).

33 The appellant does not claim prejudice and we agree there is none.

34 “The staff judge advocate is personally responsible for the pretrial advice and 

must make and independent and informed appraisal of the charges and evidence in 

order to render the advice. . . . [B]ut the staff judge advocate is, unless disqualified,

responsible for it and must sign it personally. Grounds for disqualification in a case 

include previous action in that case a preliminary hearing officer, military judge, 

trial counsel, defense counsel, or member.” R.C.M. 406(b) Discussion.
United States v. Hoffmann, No. 201400067

15

1. Col W’s role

The facts underlying this claim and key to its resolution are undisputed.35

In approximately July 2012, after the preferral of charges and Article 32 

hearing for the appellant’s first court-martial, Col W assumed the Regional 

Trial Counsel (RTC) billet at the Legal Services Support Section East (LSSSE). In this capacity, Col W “oversaw all prosecutions within the geographic 

region encompassing Camp Lejeune,”36 and was delegated detailing authority 

over the trial counsel stationed within the region. 

While Col W was serving as RTC, Major (Maj) L requested to be detailed 

to the appellant’s first court-martial to assist with pretrial motions. Col W

granted his request, detailing Maj L to join, but not supplant, the acting trial 

counsel originally detailed by the senior trial counsel. Beyond this one 

instance, “[n]either Col [W][,] nor any other member of the prosecution recall 

the extent that [he] personally participated in the prosecution of the 

[appellant’s] case (if at all).”37 Col W completed his roughly eight-month RTC 

tour shortly thereafter—months before the appellant’s first trial began.38

However, that did not mark the end of his involvement with the 

appellant’s case. When our superior court later authorized a rehearing on the 

charges involving Ryan, Col W was the SJA for the General Court-Martial 

Convening Authority. On 3 May 2016, Col W prepared an Article 34, UCMJ,

pretrial advice letter regarding the appellant’s rehearing. Consistent with Col 

W’s recommendation, the CA referred the charges to a general court-martial. 

2. The military judge’s ruling 

On 8 September 2016, the appellant filed a motion claiming improper 

referral of charges, asserting that Col W was disqualified from acting as SJA 

due to his previous role as RTC during the appellant’s first court-martial.

The military judge granted the motion in part in a thorough written 

ruling. First, he concluded “in the exercise of an abundance of caution, that 

[Col W] was disqualified from providing the pretrial advice” for the

 

35 In his written ruling on Col W’s disqualification, the military judge adopted the 

findings of fact from both defense counsel’s motion and government counsel’s 

response. AE XLII at 1, n.1 (“To the extent that a factual dispute exists between the 

two documents[,] the Court finds that this dispute is inconsequential to the 

resolution of this issue.”).

36 Id. This region included Camp Lejeune, Marine Corps Air Station Cherry 

Point, and Marine Corps Recruiting Depot Parris Island.

37 Id.

38 AE XXXIII at 2 (“[H]e ceased being the RTC on 14 March 2013” and the first 

court-martial “was conducted in August 2013”).
United States v. Hoffmann, No. 201400067

16

appellant’s rehearing.39 He noted that although it was unclear “whether he 

performed the duties of a trial counsel while fulfilling his role as RTC[,]” the 

billet itself “implies that he played some role sufficient to make 

disqualification appropriate.”40 Specifically, the military judge surmised that 

Col W “likely remained cognizant of trial strategy” given his direct 

supervisory responsibility, the close physical proximity to the trial counsel, 

the severity of the charges, and the discretion exercised in detailing Maj L.41

Second, the military judge denied the appellant’s request to dismiss the 

charges. Instead, he ordered the provision of new Article 34, UCMJ, advice, 

concluding it was “only necessary for a qualified SJA to provide the 

appropriate pretrial advice, and for the [CA] to affirm whether he desires to 

adhere to his previous decision to refer the charges.”42 In so doing, the 

military judge relied on United States v. Loving, 41 M.J. 213, 288 (C.A.A.F. 

1994), which held that factual errors in an Article 34, UCMJ, letter are not 

jurisdictional and therefore may be cured through supplemental advice 

without re-referral. 

As directed by the military judge, an uninvolved, qualified SJA prepared 

a new Article 34 advice letter. This second advisement entailed the same 

conclusions on the sufficiency of the charges, evidence, and jurisdiction, with 

the same recommendation. Armed with this new Article 34 advice, the CA 

reaffirmed his original decision referring the charges to general courtmartial. 

3. Disqualification of the SJA

On appeal, the appellant argues that the charges should have been 

dismissed as a result of Col W’s narrow disqualification and likely pretrial 

involvement prior to the provision Article 34 advice—decisions to retry the 

case and to continue pretrial confinement.43 The government opposes, 

arguing the provision of new Article 34, UCMJ, advice prepared by a 

different judge advocate remedied any potential prejudice. 

In United States v. Hardin, 7 M.J. 399, 405 (C.M.A. 1979) the issue was 

“whether the mere fact that government counsel at the pretrial investigation 

participated in the preparation of this otherwise sound pretrial advice 

 

39 AE XLII at 2. 

40 Id.

41 Id.

42 Id.

43 The appellant makes this argument, but provides no evidence of Col W’s 

involvement in these two areas. Appellant’s Brief of 18 Sep 2017 at 32.
United States v. Hoffmann, No. 201400067

17

requires automatic reversal of the appellant’s conviction.” The court 

answered in the negative, finding that the predecessor to the R.C.M. 406 

Discussion, ¶ 35b,44 was “not a codal proscription and accordingly, if error, it 

can hardly be considered anything but ordinary.” Id. 

Instead, Hardin endorsed a more pragmatic approach, recognizing that to 

“find no error in the contents of the pretrial advice but per se error in the one 

who writes it is perception for perception’s sake alone.” Id. at 404. Thus, 

“[t]he advice must be tested for legal competence and accuracy as well as the 

possibility . . . that the [CA] might have been misled in his prosecutorial 

decision as a result of some bias in the advice stemming from the [SJA’s] 

prior involvement in the case.” Id. at 405. In other words, “it is the lawfulness 

of their prosecutorial conduct performed in a professional manner which 

must be tested under Article 34, and not their functional inclinations at this 

[pretrial] stage of the proceedings.” Id. at 404.

This approach recognizes that the SJA’s pretrial advice is “primarily [a] 

prosecutorial codal tool.” Id. at 403. As such, the SJA shall not be elevated “to 

a state of absolute impartiality required in the strict sense for a trial judge,” 

but rather acts properly like a prosecutor when “advis[ing] the referral 

authority whether he may legally proceed if he so desires.” Id. at 403-04

4. Prejudice

The military judge’s ruling remedied any deficiency—real or perceived—

resulting in no prejudice to the appellant.

45

Here, the CA’s decision to order a rehearing did not constitute “illconsidered action,” nor were the referred charges regarding Ryan “ordered to 

trial due to inadvertence or mistake.” United States v. Smith, 33 C.M.R. 85, 

89 (C.M.A. 1963) (citations omitted). As part of his written ruling, the 

military judge ordered a qualified SJA to provide fresh pretrial advice for the 

CA to then affirm or revoke his referral decision via written memorandum. 

One week later, Maj Z provided just that, and the CA affirmed his decision to 

refer. 

Even proven errors in pretrial advice, whether found within the four 

corners of the Article 34, UCMJ, advice or in the status of the author, may be 

 

44 Paragraph 35b, MANUAL FOR COURTS-MARTIAL, UNITED STATES (1969) (Revised 

Edition) (“No person who has acted as investigating officer, military judge, or 

member of the court, prosecution, or defense in any case may later act as staff judge 

advocate or legal officer in the same case.”).

45 Notably, the appellant does not allege prejudice and we find no material 

prejudice to the appellant’s substantial rights.
United States v. Hoffmann, No. 201400067

18

cured through supplemental advice.46 Likewise, it would defy all notions of 

judicial efficiency to mandate the per se withdrawal of charges without a 

minimal showing of prejudice. Undoubtedly, the very purpose in requiring 

the parties at trial to move for appropriate relief based on defects in Article 

34, UCMJ, advice before the entry of pleas47 is “to prevent otherwise correct 

trials from being vitiated by defects in ancillary proceedings.” United States 

v. Klawuhn, 33 M.J. 941, 943 (N.M.C.M.R. 1991). Thus, we agree with the 

military judge that the charges were properly referred and need not have 

been withdrawn or dismissed.

After reviewing the record, we conclude that Article 34, UCMJ, advice 

was provided by Maj Z to the CA before the appellant’s charges were again 

referred to general court-martial. Therefore, there is neither improper 

referral nor prejudice to the appellant. 

D. Military judge recusal

The appellant’s fourth claimed error focuses on a past position held by the 

military judge before presiding over the rehearing. Specifically, the appellant 

argues that in light of his former role as the Officer-in-Charge (OIC) of the 

LSSS during the investigation stage of the appellant’s first court-martial, the 

military judge “should have recused himself and avoided any appearance of 

conflict.”48 We disagree. 

We review a military judge’s decision not to recuse himself for an abuse of 

discretion. United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (citing 

United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001)). “‘An accused has a 

constitutional right to an impartial judge.’” Butcher, 56 M.J. 90 (quoting 

United States v. Wright, 52 M.J. 136, 140 (C.A.A.F. 1999)). “There is a strong 

presumption that a judge is impartial, and a party seeking to demonstrate 

bias must overcome a high hurdle[.]” United States v. Quintanilla, 56 M.J. 37, 

44 (C.A.A.F. 2001). Accordingly, the “moving party has the burden of 

 

46 See, e.g., Loving, 41 M.J. at 288 (“We hold that the factual errors in the original 

pretrial advice were not jurisdictional, were corrected by the supplemental advice, 

and were not prejudicial to appellant.”); United States v. Gebert, No. 201500381, 2016 

CCA LEXIS 662, at *19-22 n.47, unpublished op. (N-M. Ct. Crim. App., 15 Nov 2016) 

(“We also find no support for the appellant’s assertion that the originally defective 

Article 34, UCMJ, advice in some way “baked” prejudice into the process that wasn’t 

remedied by the issuance of new advice”), rev. denied, 76 M.J. 172 (C.A.A.F. 2017).

47 R.C.M. 905(b)(1) requires “objections based on defects (other than jurisdictional 

defects) in the . . . referral of charges” to be raised before a plea is entered, and 

R.C.M. 905(b)(1), Discussion explicitly states that such a defect includes “inadequate 

pretrial advice.”

48 Appellant’s Brief at 39.
United States v. Hoffmann, No. 201400067

19

establishing a reasonable factual basis for disqualification. More than a mere 

surmise or conjecture is required.” Wilson v. Ouellette, 34 M.J. 798, 799 

(N.M.C.M.R. 1991) (citing Untied States v. Allen, 31 M.J. 572, 601 

(N.M.C.M.R. 1990), aff’d, 33 M.J. 209 (C.M.A. 1991)).

Disqualification of a military judge may occur for either the appearance of 

bias or actual bias. R.C.M. 902(a) and (b). “The appearance standard is 

designed to enhance public confidence in the integrity of the judicial system.” 

Quintanilla, 56 M.J. at 45 (citing Liljeberg v. Health Services Acquisition 

Corp., 486 U.S. 847, 860 (1988)). “Th[is] rule also serves to reassure the 

parties as to the fairness of the proceedings[.]” Id.

1. The military judge’s ruling

At an Article 39(a), UCMJ, session during appellant’s second trial, 

defense counsel conducted voir dire of the military judge. The military judge 

acknowledged that he had served as the LSSS OIC from October 2010 

through May 2012, before the appellant’s charges were preferred in mid-May 

2012. In this capacity, he supervised the trial and defense sections, among 

several others. As part of his supervisory responsibilities, the military judge 

also served as the reporting senior for the Military Justice Officer (MOJO) 

and was copied on all of the MOJO’s ongoing NCIS investigations. The MOJO 

at the time “was delegated authority to detail cases[,] generally oversaw the 

prosecutorial function at the LSSS. . . . and would periodically brief [the OIC] 

on important cases that he or others were working on[.]”

49 After eliciting this 

information from the military judge, the trial defense counsel verbally 

requested that he disqualify himself under R.C.M. 902(a). 

The military judge denied the defense’s motion after having “thought 

hard” about his previous role because he had “absolutely no recollection of 

participating in any aspect of the investigation, pre-preferral process, or 

preferral of the charges in this case.”50

Unsatisfied, the trial defense counsel filed a written motion for 

reconsideration. After considering this motion, the government’s response, 

the additional voir dire by trial counsel, and the oral arguments of both 

parties, the military judge again declined to recuse himself, making findings 

of fact and conclusions of law regarding his impartiality in an even more 

thorough verbal ruling. The military judge found the “fact that NCIS includes 

‘OIC/LSSS’ on the distribution list for their reports of investigation has little 

significance, as [he] certainly [does] not recall receiving copies” of every single 

 

49 Record at 99. 

50 Id. at 15-16. 
United States v. Hoffmann, No. 201400067

20

one during his tenure.51 The military judge also reemphasized that neither he 

nor the MOJO “can recall ever discussing this matter back in 2011 or 2012, 

and to speculate as to whether [they] did talk about it over four years ago

would be pure conjecture.”52

2. Appearance of bias

The appellant raises solely the appearance of bias in his appeal. That test 

under R.C.M. 902(a) is an objective standard concerning whether there was 

‘“[a]ny conduct that would lead a reasonable man knowing all the 

circumstances to the conclusion that the judge’s impartiality might 

reasonably be questioned.’” Butcher, 56 M.J. at 91 (quoting United States v. 

Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982)) (internal quotation marks omitted).

While performing this test, we consider the facts and circumstances through 

an objective lens: “not in the mind of the military judge himself, but rather in 

the mind of a reasonable man . . . who has knowledge of all the facts.” Wright, 

52 M.J. at 141 (citations and internal quotation marks omitted). Thus, the 

“judge’s statements concerning his intentions and the matters upon which he 

will rely are not irrelevant to the inquiry.” Id. (citations omitted)

On appeal, the appellant remains unable to provide any meaningful 

evidence to support his assertion that the military judge exuded the 

appearance of bias in order to elevate his claim above conjecture. The 

appellant’s brief is an almost verbatim reiteration of the challenge at trial53

and does not reveal any new facts that would suggest a lack of impartiality.

The appellant provides no evidence, relying instead on conclusory statements 

that the possibility of the military judge’s awareness of the facts of the case 

creates an apparent bias.54 

 There is simply no evidence that the military judge was biased or had the 

appearance of bias; he was firm but fair to both sides. The full record 

discloses that the military judge applied the law correctly and even-handedly. 

We find that the “court-martial’s legality, fairness, and impartiality” were not 

put into doubt. United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000) 

(citations and internal quotation marks omitted).

Based on our review of the record and in light of the actions taken by the 

military judge, we find that no reasonable observer, seized of the pertinent 

 

51 Id. at 100.

52 Id. at 99.

53 Appellant’s Brief at 34-39; Appellate Exhibit XXVII at 1-5.

54 Record at 93-94 (“it is not an unreasonable stretch to believe that the military 

judge was certainly aware of the case” because “it is possible that there was a general 

discussion of the facts” and “the reality is that the optics here just aren’t good”).
United States v. Hoffmann, No. 201400067

21

facts, could reasonably question the military judge’s impartiality. We 

therefore hold that the military judge did not abuse his discretion in denying 

the appellant’s recusal motion. We further conclude that a reasonable person 

observing this court-martial would have full confidence in the judicial 

process.

E. Sentence disparity and severity

In his final AOE, the appellant argues that his sentence is “inappropriate 

and highly disparate from a closely related” Army case with an “extremely 

similar fact pattern,” which entitles him to relief.55 Because he has since 

completed his confinement, he asks this court to set aside his dishonorable 

discharge.56 We decline to do so. 

1. Sentence disparity

A narrow exception to the general principle of non-comparison regarding 

sentences exists ‘“in those rare instances in which sentence appropriateness 

can be fairly determined only by reference to disparate sentences adjudged in 

closely related cases.”’ United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) 

(quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). When 

requesting relief by way of this exception, an appellant’s burden is twofold: 

the appellant must demonstrate “that any cited cases are ‘closely related’ to 

his or her case and that the resulting sentences are ‘highly disparate.’” Id.

Only if the appellant succeeds on both prongs will the burden shift to the 

government to “show that there is a rational basis for the disparity.” Id.

First, for cases to qualify as closely related, “the cases must involve 

offenses that are similar in both nature and seriousness or which arise from a 

common scheme or design.” United States v. Kelly, 40 M.J. 558, 570 

(N.M.C.M.R. 1994). “This threshold requirement can be satisfied by evidence 

of “co[-]actors involved in a common crime, servicemembers involved in a 

common or parallel scheme, or some other direct nexus between the 

servicemembers whose sentences are sought to be compared[.]” United States 

v. Pena, No. 201700327, 2018 CCA LEXIS 279, at *4 (N-M. Ct. Crim. App. 5 

Jun 2018) (quoting Lacy, 50 M.J. at 288-89 (finding cases qualified as closely 

related “where appellant and two other Marines engaged in the same course 

of conduct with the same victim in each other’s presence”)); United States v. 

Williams, No. 201600197, 2017 CCA LEXIS 702, at *8, unpublished op. (N-M. 

Ct. Crim. App. 16 Nov 2017) (finding cases did not qualify as closely related 

where “the appellant’s offenses and those committed by the other five Marine 

 

55 Appellant’s Brief at 40, 44.

56 The case cited for sentence comparison resulted in a bad-conduct discharge and 

the appellant is requesting that we set aside his dishonorable discharge.
United States v. Hoffmann, No. 201400067

22

E-8s took place at different times, at different commands, in different parts of 

the world, and involved unrelated women under differing factual 

circumstances”).

Second, when assessing disparity among sentences, we look only to 

adjudged sentences, rather than those approved or bargained for in a pre or 

post-trial agreement: “[a]djudged sentences are used because there are 

several intervening and independent factors between trial and appeal—

including discretionary grants of clemency and limits from pretrial 

agreements—that might properly create the disparity[.]” United States v. 

Roach, 69 M.J. 17, 21 (C.A.A.F. 2010). Accordingly, we “refrain from second 

guessing or comparing a sentence that flows from a lawful pretrial agreement 

or a CA’s lawful exercise of his authority to grant clemency to an appellant.” 

United States v. Widak, No. 201500309, 2016 CCA LEXIS 172, at *7, 

unpublished op. (N-M. Ct. Crim. App. 22 Mar 2016) (citations omitted).

Here, the appellant requests we compare his sentence to one other 

sentence awarded in United States v. Rodriquez, No. 20130577, 2015 CCA 

LEXIS 551, unpublished op. (A. Ct. Crim. App. 1 Dec 2015). In Rodriquez, an 

Army specialist “followed minor girls walking on post in his car, and then 

approached them and talked to them.” Id. at *3. He received a sentence of a

bad-conduct discharge, confinement for two years, and reduction to pay grade 

of E-1 for his offenses, which included one specification of sexual abuse of a 

child by committing a lewd act.57

We find the appellant has failed to carry his preliminary burden to show 

this cited case is closely related to his own. His analogy is insufficient—the 

two offenders were not co-conspirators, involved in a common criminal 

scheme, pursuing a shared victim, or otherwise acting in concert to establish 

the prerequisite “direct nexus” with one another. Rather, the two men are 

from different branches of service, different coasts, and were charged under 

different versions of Article 120, UCMJ. Whether cases are closely related is 

a legal question that cannot be satisfied by some semblance of factual 

similarity between two independent actors. See United States v. Durant, 55 

M.J. 258, 262 (C.A.A.F. 2001).

 

57 The appellant in Rodriquez was convicted of “one specification of failing to obey 

a lawful order, one specification of sexual abuse of a child by committing a lewd act, 

and six specifications of wrongfully annoying and molesting a minor in violation of 

California Penal Code § 647.6(a)(1), in violation of Articles 92, 120b, and 134,” 

UCMJ, 10 U.S.C. §§ 892, 920b, and 934 (2012). Id. at *1-2. The Army Court of 

Criminal Appeals set aside the specifications charged under the California Penal 

Code as preempted by Article 120(b), UCMJ, and reassessed the sentence. Id. at *7-8.
United States v. Hoffmann, No. 201400067

23

Assuming the appellant’s case was closely related to Rodriquez, he also 

fails to satisfy the second prong of the test of proving a wide disparity 

between the two adjudged sentences “that are unsupported by good and 

cogent reasons.” Kelly, 40 M.J. at 570. The appellant overlooks the procedural

history in Rodriquez, specifically the key factor that Rodriquez had 

negotiated a pretrial agreement and pled guilty to all offenses with a military 

judge; whereas the appellant pled not guilty and was sentenced by members. 

Because “pretrial agreements involve highly subjective processes which this 

court is ill-equipped to second guess[,]” we must refrain questioning the 

disparity alleged here. Widak, 2016 CCA LEXIS 172, at *7.

Thus, the appellant has not sustained either part of his dual burden of 

showing a closely related case with an adjudged sentence to warrant 

comparison. Plainly, “[t]he mere similarity of offenses is not sufficient.” 

United States v. Washington, 57 M.J. 394, 401 (C.A.A.F. 2002) (citation 

omitted). We are not convinced that the appellant suffered a miscarriage of 

justice solely because another offender took advantage of the benefits and 

relief of a pretrial agreement by accepting full responsibility for his actions, 

while the appellant declined to do so. 

2. Sentence severity

Having found the appellant’s request for comparison unpersuasive, we 

now evaluate the appellant’s sentence on its own facts as part of our due 

diligence under Article 66(c), UCMJ. See United States v. Baier, 60 M.J. 382, 

384-85 (C.A.A.F. 2005).58 We review issues of sentence appropriateness de 

novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).

“Sentence appropriateness involves the judicial function of assuring that 

justice is done and that the accused gets the punishment he deserves.” United 

States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires our 

“individualized consideration of the particular accused ‘on the basis of the 

nature and seriousness of the offense and the character of the offender.’” 

United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United 

States v. Mamaluy, 27 C.M.R. 176, 180-81 (C.M.A. 1959)). In making this 

assessment, we analyze the record as a whole. Healy, 26 M.J. at 395. 

Notwithstanding our significant discretion for determining appropriateness, 

we must remain mindful that we may not engage in acts of clemency. United 

States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

 

58 See also United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (“However 

proper it may be for the [CA] and [Courts of Criminal Appeals] to consider sentence 

comparison as an aspect of sentence appropriateness, it is only one of the many 

aspects of that consideration”) (citations omitted).
United States v. Hoffmann, No. 201400067

24

Looking to his offenses, our superior court has recognized that “taking 

indecent liberties [with a child] is the first step toward more serious sex 

crimes of a perverted nature[.]” United States v. Brown, 13 C.M.R. 10 (C.M.A. 

1953). Here, the appellant targeted young and vulnerable children for his 

indecent communications with the hope that his words would lead to more. 

His two convictions involving Ryan demonstrate a calculated attempt to 

entice a teenage boy to engage in oral sexual acts without regard for the 

impact on his impressionable victim. He repeatedly circled around the block, 

unwilling to accept Ryan’s refusal to participate until Ryan ran home to 

prevent a possible fifth drive-by. Despite these actions, he remained largely 

unremorseful throughout his unsworn statement, making a general apology59

and claim that he had “changed from [his] experiences.”60

The appellant faced the possibility of 35 years’ confinement and a 

dishonorable discharge. Given the circumstances of his offenses, we find that 

the approved 7 years’ confinement is within the bounds of reason. Regarding 

the dishonorable discharge, the appellant’s actions severely compromised his 

standing as a member of society and the armed forces. We too are satisfied 

that these offenses warrant the severe punishment that such a discharge 

represents. 

Having given our individualized consideration of the appellant, the 

appellant’s record of service, the nature and seriousness of the offenses, and 

all other matters contained in the record of trial, we find the sentence to be 

appropriate for this offender and his offenses. Granting sentence relief at this 

point would be to engage in clemency, and we decline to do so. Healy, 26 M.J. 

at 395-96.61

 

59 The appellant said, “I would like to apologize for any mistakes I’ve made, any 

pain I have caused.” Record at 672. Otherwise, he did not express any other 

signs/words of remorse or concern for his child victim. 

60 Id. at 674.

61 We note that here the CA in this case was not constrained in his clemency 

consideration. Because the appellant’s offenses occurred in 2011, the CA was vested 

with full Article 60, UCMJ, authority to “modify or dismiss charges and modify the 

sentence.” United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam). The 

CA declined to exercise this unfettered authority and instead approved the sentence 

authorized by the law. Although the appellant was sentenced to 10 years’ 

confinement on rehearing, he was sentenced to 7 years’ confinement at his first courtmartial and therefore the CA properly approved the 7 vice 10 years’ confinement.
United States v. Hoffmann, No. 201400067

25

III. CONCLUSION

The findings and sentence are affirmed. 

Senior Judge HUTCHISON and Judge SAYEGH concur.

For the Court

R.H. TROIDL

Clerk of Court