## U NITED 

## S TATES 

## N AVY



## – M ARINE 

## C ORPS 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_________________________ No. 201 4 000 67

_________________________ 

### UNITED STATES OF AMERICA

Appelle e

v.


### MATTHEW P. HOFFMANN Corporal (E

- 4 ), U.S. Marine Corps

Appellant

_________________________ Appea l 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 Recommendat ion: Major Kar a 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 201 8

_________________________ Before G LASER

- A LLEN , H UT CHISON , and S AYEGH , 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 a s a general court

- martial convicted the appellant, contrary to his pleas, of indecent liberties with a child an d child enticement
, in viol ation of Article s 120 and 134 , U niform C ode M ilitaryUnited States v. Hoffmann , No. 201400067

2 J ustice (UCMJ), 10 U.S.C. §§ 92 0 and 934

. 1 The members sentenced the appellant to t en 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 t he approved sentence executed. The appella nt avers six assignments of error (AOE) : 2 (1 ) the military judge abused his discretion by admitting propensity evidence under M ILITARY R ULE OF E VIDENCE (M IL

. R. E VID

. ) 414
, M ANUAL
FOR C OURTS

- M ARTIAL (MCM)
, U NITED S TATES (201 2 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 pr oviding input on the Article 34 l etter as staff judge advocate to include other areas of pretrial advice; (4) the military judge should have recused himsel f ; (5) the appellant’s sentence is inappropriate ly severe and highly disparate from a closely relat ed case; 4 and (6) there is error requiring corrective action in t h e appellant’ s R eport of R esults of T rial due to an incorrect Defense Incident

- Based Reporting System ( DIBRS ) code

. 5 Having carefully considered the record of trial and the parties’ submissi ons, 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 s upplemental AOE was filed prior to our 21 Feb ruary 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. B ACKGROUND
This case is before us for a second time. On 23 August 2013, the appellant was convicted of offenses involving “ Ryan ” and possessi on of child pornography. 6 On 18 February 2016, our superior c ourt set aside the findings and sentence, dismissing the child pornography charges with prejudice and auth orizing 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 R yan was walking home from school. On the third pas s , the man pulled up and asked R yan if he wanted a “quickie.” 8 R yan declined
, and the man asked if R yan knew what a “quickie” was. R yan said “no,” and the man drove around the block again. The man drove up to R yan a fourth time and asked,

“ [ a ] re you sur e, ” and “[y]ou’ll like it.” 9 R yan 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 a nd making a gesture with his hand that A lex took to indicate fellatio. The third time the man drove by, he made the same gesture and asked A lex if he wanted to go for a ride. A lex declined
, and the man drove away.

A lso in about September 2011
, a man in a silver SUV drove by P ete , 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 bac k
, and the male driver was wearing a green military undershirt.

In November 2011, A lex saw the SUV that had approached him in September in the same vicinity o f 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 offense s 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 imm ediately called his mother, who promptly drove to his location. While returning home, A lex and his mother passed the SUV and began following it. A high speed chase ensued
, but A lex ’s mother was unable to keep up with the SUV

. S he noticed the SUV was a “RAV 4” with a hard case on the spare tire and yellow New York license plate

. 10
Pete’s mother observed the on

- base car chase, wr o te down the SUV’s license plate number , and provided it to Alex’s mother

. 11 A lex ’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, entere d the appellant’s wor kplace
, 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. D I SCUSSION
A. Uncharged p ropensity evidence The appellant argues the military judge erred when admitting uncharged propensity evidence of his prior acquittals under M IL

. R. E VID

. 414 by improperly conducting the M IL

. R. E VID

. 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); Un ited 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.” M IL

. R. E VID

. 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, wit h the exception of one letter. Record at 361

- 6 2

.

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

5 undue delay, wasting time, or needl essly presenting cumulative evidence.” M IL

. R. E VID . 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.” M IL

. R. E VID . 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” M IL

. R. E VID . 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 M IL

. R. E VID . 404(b) , including prior misconduct of which the accused was acquitted:

1. Does the evidence reasonabl y 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 o utweighed 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, th e acquittal is a factor in the test for admissibility. “ The fa ct 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 is sues, 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 M IL

. R. E VID . 403) (additional citations omitted)

. An accused also has the right to pro ve that he or she was previously acquitted of the acts admitted into evidence under M IL

. R. E VID . 404(b). United States v. Cuellar
, 27 M.J. 50, 56 (C.M.A. 1988).

2. M IL

. R. E VID

. 41 4

. We review the admissibility of evidence under M IL

. R. E VID . 414 for an abu se 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 M IL . R. E VID . 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.” M IL . R. E VID . 414

. Thus, “inherent in [ M IL

. R. E VID

. 41 4] is a ge neral 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 M IL

. R. E VID . 414 propensity and M IL

. R. E VID 404(b) uncharged misconduct analysis into a single ruli ng for efficiency

. T he same acquittal evidence was at issue under both evidentiary rules
, and the M IL

. R. E VID . 414 requirements incorporate the key aspects of the M IL

. R. E VID . 404(b) test

. 3. M IL

. R. E VID

. 41 4 t hreshold r equirements Before admitting evid ence under M IL . R. E VID . 41 4 , three initial threshold requirements must be met: (1) the accused is charged with a n offense of child molestation within the meaning of M IL . R. E VID . 41 4 (d); (2) the proffered evidence is that the appellant committed another o ffense of child molestation within the meaning of M IL

. R. E VID . 41 4 (d); and (3) the proffered evidence is logically relevant under both M IL . R. E VID . 401 and 402. United States v. Solomon , 72 M.J. 176, 179 (C.A.A.F. 2013) (citations omitted). To meet the

s econd requirement, the military judge must conclude that the members “could find by [a] preponderance of the evidence that the offenses occurred[.]” United States v. W

right , 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, h e noted that during an Article 39(a), UCMJ
, session, the defense conceded that the first two requi rements under M IL . R. E VID . 414 were met “since at least one of the charged allegations, as well as the uncharged misconduct, fall with in the definition of ‘child molestation’ under [ M IL . R. E VID

. ] 414(d).” 14 The

13 The Berry court was specifically dealing with M IL

. R. E VID . 413, but the court ’s analysis applies to both M IL

. R. E VID . 413 and 414. See United States v. Ta nner , 63 M.J. 445, 448

- 49 (C.A.A.F. 2006) (noting the similar legislative history with M IL

. R. E VID . 413, its “companion rule,” and finding that M IL

. R. E VID . 414, like M IL

. R. E VID

. 413, establishes a presumption in favor of admissibility of evidence of p rior 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. (N

M

. 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 M IL

. R. E VID . 414 using the same standards applied to M IL

. R. E VID . 413).

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

- 60 . The military judge went on to note that M IL . R. E VID . 414(d)(2 ) (A) and (G) define “childUnited States v. Hoffmann , No. 201400067

7 military judge was satisfied that Alex and P ete’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
stat ements 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 acquittal s

. This evidence not only met the first two prongs of the M IL . R. E VID . 414 threshold requirements, but also the first prong of the Reynolds M IL . R. E VID

. 404(b) test. Recognizing this overlap in the admissibility tests, the military judge found the M IL

. R. E VID . 414 th ird threshold prong of logical relevance mirror ed 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 mot ive, 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 M IL . R. E VID

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

4. M IL

. R. E VID

. 403 b alancing t est and the Wright /Berry f actors
Once the evidence meets the three threshold requirements under M IL . R. E VID . 414 , “the military judge is constitutionally required to also apply a balancing tes t under [ M IL

. R. E VID

. ] 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 militar y 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] M IL . R. E VID . 414.” AE XLVII at 3 n.5 (internal quotation marks omitted)

15 A E 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 M IL . R. E VID

. 403 factor s also encompas s es the third prong of the Reynolds M IL . R. E VID

. 404(b) test.

If the “balancing test requires exclusion of the evidence, the presumption of admissibility [that is inherent within M IL . R. E VID . 413] is overcome.” Berry , 61 M.J. at 95 (c iting Wright , 53 M.J. at 482

- 83). “When a military judge articulates his properly conducted [ M IL

. R. E VID .] 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 St ates 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 b y Alex and Pete occurred by a preponderance of the evidence and that their anticipated in

court te stimony 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 we re and would be subject to “stringent defense questioning during sworn depositions
, ” would again be subject to cross

examination, and recognized that admission of this evidence was not barred by the prior acquittal s

. 17 We agree. The preponderance of e vidence 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 acquittal s , the additional evidence provided on the motion, and the nece ssary 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 M IL . R. E VID

. 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 t he 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 . A ll three alleged victims were young boys approached by a man driving a silver or light color ed 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 w as striking ly similar
, making the evidence highly probative , but not unfairly prejudicial. 20 This type of evidence is exactly what M IL . R. E VID

. 414 was intended to admit

. T hough uncharged misconduct at this trial, it also demonstrates permissible government theories of culpability. The members were informed of the prior acquittal s and properly instructed on how to use the evidence for propensity and motive, intent or common scheme consideration.

c . Potential for less prejudicial eviden ce; distraction of the factfinder; time needed for proof of the prior conduct

Like the first two Wright factors above, w e agree with the military judge’s conclusion that there was no less prejudicial evidence. Like the military judge, we find distrac tion 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 acquittal s 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 an d in his final instructions

. The unique facts of this case also properly allowed the prior acquittal evidence under M IL . R. E VID . 404(b)

. While the trial counsel did discuss the three boys in his opening statement and closing ar gument, 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 f ocused 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 unfair ly prejudic ial , but his defense theory of misidentification actually made the pattern theme under M IL . R. E VID . 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 highligh ted 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

. T here were no intervening circumstances that would diminish the probative value of the evidence, and the par ties were not related. The military judge concluded that these factors weighed in favor of admission. Again, w e agree. The temporal proximity is highly probative given their similarities but not unfairly so. We find that the military judge pro perly conducted the M IL . R. E VID . 403 balancing test and neither erred nor abused his discretion by admitting the prior acquittals under either M IL . R. E VID . 414 or 404(b). His measured analysis on the record and in his written ruling was reasonable and no t 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 eviden ce 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 M IL . R. E VID . 414 evidence admissibility should be liberally construed ) ; and United States v. Morrison , 52 M.J. 117, 122

- 23 (C.A.A.F. 1999 ) ( w here evidence is offered to show modus operandi, there must be a high degree of similarity between the extrinsi c 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 disag r ee.
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 [ M IL

. R

. E VID .] 413 or 414 [

. ] ” 23 After informing defense coun sel 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 oth er aspect of it?

D C : No, sir. 24 Before their deliberations on findings, the military judge instructed the members concerning their use of the un charged acquittal evidence . They could consider the uncharged sexual misconduct pursuant to M IL

. R

. E VID

. 414, as evidence of the appellant’s propensity to commit the charged sexual misconduct
, and pursuant to M IL

. R

. E VID

. 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 o ffenses 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 i t s 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 omi tted). 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 err or 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 c oncedes 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 instruction s , we find no error.

3. P lain 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 i s more likely than not, these uncharged offenses occurred .” 27

The militar y 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 2 7

- 9 at ¶ 7

- 1 3

- 1 (20 Mar 2015) )

.United States v. Hoffmann , No. 201400067

13 propensity offenses occurred and by what standard

. H owever, h e believed procedurally the initial requirement had been fulfilled once he made the admissibility analysis under M IL

. R

. E VID

. 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 M IL

. R

. E VID

. 404(b). He noted the members are generally permitted to give their own assignment of weight to uncharged M IL

. R

. E VID

. 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 confusi ng 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 th a n what the appellant proposed here regarding uncharged misconduct , but he offers no autho rity for his position that the military judge must instruct the members using the preponderanc e standard

. 30 Accordingly, w e find that the military judge did not commit error, and certainly not plain or obvious error, when instruct ing the members on how to use the uncharged misconduct evidence as both uncharged misconduct and propensity evidence. No tably, 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 mud dled 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 ju dge is not “required to disaggregate the [414] instruction” and that a M IL

. R. E VID

. 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. M oreover, 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” w as omitted. 31 This revision brought the B enchbook 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 un charged 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 charge d with three offenses but convicted of two

— which reinforces our belief that the members understood and properly followed the judge’s instructions.

C. Improper r eferral In his third AOE, the appellant argues the military judge erred when he failed to pre clude 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 R ULE FOR C OURTS

- M ARTIAL (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
, U NITED S TATES (20 12 ) . Such pretrial advice must be provided in writi ng 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 s tate 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 p rejudice 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 a dvocate 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. 4 06(b) Discussion.United States v. Hoffmann , No. 201400067

15 1. Col W’s role

The facts und erlying this claim and key to its resolution are un disputed. 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 Serv ices Support Section East (LSSS

E). 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 servi ng 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 Co l [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
to ur 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 c ourt later authorized a rehearing on the charges involving R yan , 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 bet ween 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 a lthough 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 j udge 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 whet her 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 jurisdictio nal 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 sufficienc y of the charges, evidence, and jurisdiction, with the same recommendation

. Armed with this new Article 34 advice, t he CA reaffirmed his original decision referring the charges to general court

martia l

. 3. D isqualification of the SJA On appeal, the appel lant 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 governmen t 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, 4 05 (C.M.A. 1979) the issue was “whether the mere fact that government counse l 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 th is argument , but provides no evidence of Col W’s involvement in these two a reas. 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 Discussio n, ¶ 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 de cision as a result of some bias in the advice stemming from the [SJA’s] prior involvement in the case.” Id. at 40 5 . In other words, “it is the lawfulness of their prosecutorial conduct performed in a professional manner which must be tested under Article 3 4, 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

- 0 4

4

. P rejudice The military j udge’s ruling remed ied 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 “ill

considered action,” nor were the referred charges regarding Ryan “ordered to trial du e 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 re ferral decision via written memorandum. One week later, Ma j Z provided just that, and the CA affirmed his decision to refer.

E ven proven errors in pretrial advice, whether found within the four corners of the Article 34 , UCMJ, advice or in the status of t he author , may be

44 Paragraph 35b, M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES (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 a ppellant’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 t rial to move for appropriate relief based on defects in Article 34 , UCMJ, advice before the entry of pleas 47 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 appel lant’s charges were again referred to general court

- martial. Th erefore, there is neither improper referral nor prejudice to the appellant

. D

. Military judge recusal

T he 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 L SSS during the investigation stage of the appellant’s first court

- martial, the military judge “should have recu sed 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 seeki ng 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 tha t 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 appearanc e 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, 86 0 (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 ju dge . 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 responsibilit ies , 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 d etail 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 coun sel 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 inve stigation, 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 cou nsel, 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 NCI S includes ‘OIC/LSS S ’ on the distribution list for their r eports of i nvestigation 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

no r 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 ap peal . 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.’” Butch er , 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 h imself, 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 wil l 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 trial 53 and does not reveal a ny new fact s that would suggest a lack of impartiality

. The appellant provides no evidence, relying instead on conclusory statements that t he possibility of the military judge’s awareness of the facts of the case creates an apparent bias. 54

T here 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 d iscloses 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

- 3 9 ; Appellate Exhibit XXVII at 1

- 5.

54 Record at 93

- 94 ( “it is not an unreasonable stretch to be lieve 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 t his court

- martial would have full confidence in the judicial
process.
E . Sentence disparity and severity In his final AOE, t he 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 th e 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. 1 999) (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 th at 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[

- ]ac tors 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”) ) ; U nited States v. Willi ams , 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 T he case cited for senten ce 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 tim es, 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 sentenc e 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 b urden 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 prerequisit e “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 fact ual 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 Rodri q uez 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. 200 2 ) (citation omitted) . We are not convinced that the appellant suffered a miscarriage of justice solely because another offender took advantag e 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 appell ant’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. 20 06). “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 o f 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 m aking 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. 1 38, 146 (C.A.A.F. 2010).

58 See also United States v. Snelling , 14 M.J. 267, 268 (C.M .A. 198 2 ) (“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, o ur 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 sex ual acts without regard for the impact on his impressionable victim. He repeatedly circled around the block, unwilling to accept R yan ’s refusal to participate until R yan ran home to prevent a possible fifth drive

- by. Despite these actions, he remained larg ely unremorseful throughout his unsworn statement, making a general apology 59 and claim that he ha d “changed from [his] experiences.” 60

T he 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 sa id, “I would like to apologize for any mistakes I’ve made, any pain I have caused.” Record at 672. Otherwise, he did not express a ny 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 no t 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 h is first court

martial and therefore the CA properly approved the 7 vice 10 years’ confinement.United States v. Hoffmann , No. 201400067

25 III. C ONCLUSION The findings and sentence are affirmed.

Senior Judge H UTCHISON and Judge SAYEGH concur.

For the Court

R.H. TROIDL Clerk of Court