UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, J.R. MCFARLANE, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

KELVIN L. ZIMMERMAN

SERGEANT (E-5), U.S. MARINE CORPS

NMCCA 201300350

SPECIAL COURT-MARTIAL

Sentence Adjudged: 16 May 2013.

Military Judge: LtCol Elizabeth A. Harvey, USMC.

Convening Authority: Commanding Officer, 9th Marine Corps 

District, Western Recruiting Region, Marine Corps Recruit 

Depot, San Diego, CA.

Staff Judge Advocate's Recommendation: LtCol J.E. Ming, 

USMC.

For Appellant: LT Carrie E. Theis, JAGC, USN.

For Appellee: LCDR Keith B. Lofland, JAGC, USN; LT Ann E. 

Dingle, JAGC, USN.

11 December 2014

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OPINION OF THE COURT 

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

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A special court-martial composed of officer and enlisted 

members convicted the appellant, contrary to his pleas, of three 

specifications of violating a lawful general order and one 

specification of making a false official statement, in violation 
2

of Articles 92 and 107, Uniform Code of Military Justice, 10 

U.S.C. §§ 892 and 907. The appellant was sentenced to 

confinement for sixty days, forfeiture of $758.00 pay per month 

for two months, reduction to pay grade E-1, and a bad-conduct 

discharge. The convening authority (CA) approved the adjudged 

sentence and except for the bad-conduct discharge, ordered it 

executed. 

On appeal, the appellant contends: (1) that the military 

judge erred by denying the challenge for cause against Gunnery 

Sergeant (GySgt) L, a member of the panel; (2) that the evidence 

adduced at trial was legally and factually insufficient; (3) 

that the appellant’s sentence was inappropriately severe; and, 

(4) that the Commandant of the Marine Corps (CMC) exerted 

unlawful command influence (UCI) on the court-martial through a 

series of lectures known as the “Heritage Briefs.” 

After carefully considering the parties’ pleadings, the 

appellant’s allegations of error, and the record of trial, we 

conclude that the findings and the sentence are correct in law 

and fact and that no error prejudicial to the substantial rights 

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

Background

While serving as a Marine Corps Recruiter at the Recruiting 

Substation Peoria, Illinois in the spring of 2012, the appellant 

developed an inappropriate relationship with two young women 

whom he was formally recruiting to join the Marine Corps. In his 

position as a Marine Corps recruiter the appellant met AS. 

During her recruitment, the appellant overtly discussed subjects

of a sexual nature with her and eventually began communicating 

with her via his personal cell phone. Over the course of 

several weeks the appellant had sexual intercourse with AS on 

multiple occasions and used the recruiting station Government 

vehicle to transport her to and from their sexual venues. 

The appellant also developed an inappropriate relationship 

with CK while she was still in the process of recruitment. He 

began texting her from his personal cell phone and eventually CK 

sent sexually provocative photographs of herself to him via text 

message. The appellant and CK also sent each other sexually 

explicit text messages. 
3

Additional pertinent facts are provided as necessary to 

discuss the appellant’s assignments of error.1 

Challenge for Cause

In his initial assignment of error (AOE), the appellant 

avers that the military judge erred by not granting the 

defense’s challenge for cause against GySgt L on the grounds of 

implied bias.

A panel member may be removed for cause if such removal is 

in the “interest of having the court-martial free from 

substantial doubt as to legality, fairness, and impartiality.” 

RULE FOR COURTS-MARTIAL 912(f)(1)(N), MANUAL FOR COURTS-MARTIAL, UNITED 

STATES (2012 ed.). This rule applies to both implied and actual 

bias.2 Implied bias exists “when most people in the same 

position as the court member would be prejudiced.” United 

States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citations 

omitted). The test to determine substantial doubt about the 

fairness and impartiality of the trial is evaluated objectively, 

“through the eyes of the public.” United States v. Townsend, 65 

M.J. 460, 463 (C.A.A.F. 2008) (quoting United States v. 

Schlamer, 52 M.J. 80, 92-93 (C.A.A.F. 1999)) (additional 

citation omitted). “[I]ssues of implied bias are reviewed under 

a standard less deferential than abuse of discretion but more 

deferential than de novo.” United States v. Strand, 59 M.J. 

455, 458 (C.A.A.F. 2004) (citation and internal quotation marks 

omitted). Finally, “when there is no actual bias, ‘implied bias 

should be invoked rarely.’” United States v. Warden, 51 M.J. 

78, 81-82 (C.A.A.F. 1999) (quoting United States v. Rome, 47 

M.J. 467, 469 (C.A.A.F. 1998).

The appellant’s argument is two-fold. First, during group 

voir dire of the panel the military judge asked the following 

question: “[i]f you are selected as a member of the case, can 

you . . . decide this case solely upon the evidence presented in 

this court-martial and the law that I instruct you upon?” 

Record at 69. The military judge asked the members to raise 

their hands to indicate an affirmative response to the question. 

GySgt L did not raise his hand which was deemed to be a negative 

response by the military judge. Id. Secondly, after GySgt L 

 

1 Both AS and CK enlisted in the United States Marine Corps and testified at 

the appellant’s trial. At the time of trial AS was a private first class and

CK was a lance corporal. 

2 The appellant does not allege and the record does not reflect any actual 

bias by GySgt L and we will limit our discussion and analysis accordingly. 
4

left a previous assignment as a Marine Corps Recruiter in Costa 

Mesa, California, he learned that his supervisor at the 

Recruiting Station was court-martialed for recruiter misconduct 

similar to that with which the appellant was charged and this 

somehow tainted his ability to sit fairly and impartially at the 

appellant’s court-martial.

Voir Dire Response

Raised for the first time on appeal, we note that the trial 

defense counsel did not challenge GySgt L based upon his 

response to the aforementioned question. R.C.M. 912(f)(4) 

provides, inter alia, that “. . . any other ground for a 

challenge for cause is waived if the party knew or could have 

discovered by the exercise of diligence the ground for challenge 

and failed to raise it in a timely manner.” Having not raised 

this issue at trial, we find that the appellant forfeited his 

right to challenge GySgt L on that basis.

We additionally note that R.C.M. 912(f)(4) allows the 

military judge, in the absence of a challenge or waiver of a 

challenge by the parties, to excuse a member “in the interest of 

justice” where a challenge for cause would lie. After his 

response to the question above, group voir dire continued and 

GySgt L, in concert with the rest of the members, provided 

responses which did not give the military judge or either 

counsel pause for concern as to GySgt L’s impartiality or 

fitness to serve as a member. To the contrary, obviously 

content with GySgt L’s answers to the remainder of the group 

voir dire questions, neither the military judge, the trial 

counsel, nor the trial defense counsel asked any follow up 

questions during individual voir dire with respect to GySgt L’s 

response to the aforementioned question. After thoroughly 

reviewing GySgt L’s responses during group and individual voir 

dire, we find no basis to support a challenge for cause for 

actual or implied bias. Accordingly, we find the “interest of 

justice” did not warrant sua sponte excusal of GySgt L by the 

military judge and that there was no plain error. 

Prior Exposure to Alleged Recruiter Misconduct

The appellant next contends that the military judge erred 

by not granting the trial defense counsel’s challenge for cause 

based on implied bias in that GySgt L indicated during 

individual voir dire that he learned one of his former bosses 

from when he was on recruiting duty was court-martialed for 

having “sexual relations” with a poolee. Record at 149. GySgt 
5

L indicated that although he had executed permanent change of 

duty station orders prior to the conclusion of his former boss’s 

case and did not know first-hand the result of the courtmartial, he heard that his former boss was kicked out of the 

Marine Corps and reduced to private. GySgt L further indicated 

that he did not verify this information and that he heard it 

“word of mouth”. Id. at 150. GySgt L also stated during 

individual voir dire that he understood each court-martial was 

unique, and that he would be able to assess the evidence in this 

particular court-martial before he came to any conclusion. Id.

at 150-55. 

The trial defense counsel challenged GySgt L for cause 

based on implied bias and argued: 

[GySgt L has] experience where a former supervisor –

he just heard was court-martialed and received a BCD 

and reduction to E-1. And it sounds like it was at 

least one allegation similar to [the appellant’s]. So 

he may have in his mind what he thinks is appropriate 

as a result of a hearing rumor mill – what happens 

when you get RFCd for poolee misconduct. That’s the 

only – I think that’s the only case that he had heard 

of a court-martial happening. So he may come with 

that mindset that that’s what happens it [sic] you are 

guilty.

Id. at 159. 

The appellant now argues that the military judge abused his 

discretion by denying the challenge for cause against GySgt L 

based upon the aforementioned information. 

Based upon his responses during individual voir dire, the 

military judge denied the challenge for cause against GySgt L. 

The military put his analysis and conclusions on the record and 

stated:

[GySgt L] left the recruiting station before that case 

was adjudicated. And that he heard that there was a 

punitive discharge or that he had been kicked out, I 

think is what he said and reduction to E-1, but he 

didn’t know anything more about it.

The government asked him in follow up whether or not 

he understood that each case is individual and that he 

would have to adjudge this one on the facts and the 
6

law presented here. He said, he would. Based on his 

conduct in the court and, again, with all of these 

[other challenges for cause], I do have the liberal 

grant mandate.

But in testing for both implied and actual bias, I 

also deny the challenge for cause as to Gunnery 

Sergeant [L]. I don’t – I asked on numerous occasions 

whether or not there’s any sort of set formula or 

punishment and he said, no, in general voir dire. And 

there’s nothing in individual voir dire that made me 

believe that he ascribed the punishment given to 

somebody else as some sort or a standard of required 

punishment for this case, should the case go to 

sentencing. 

Id. at 166.

The record reflects that the military judge appropriately 

understood the liberal grant mandate and, in denying the 

challenge for cause, stated his analysis and application of law 

on the record. “A military judge who addresses implied bias by 

applying the liberal grant mandate on the record will receive 

more deference than one that does not.” United States v. Clay,

64 M.J. 274, 277 (C.A.A.F. 2007). While we review issues of 

implied bias under a standard less deferential than abuse of 

discretion, “where the military judge places on the record his 

analysis and application of law to the facts, deference is 

surely warranted.” United States v. Downing, 56 M.J. 419, 422 

(C.A.A.F. 2002). After a thorough review of the record, to 

include the responses offered by GySgt L during group and 

individual voir dire, we too find no evidence of bias -- actual 

or implied. Accordingly, we find that the military judge did 

not abuse his discretion by denying the trial defense counsel’s 

challenge for cause against GySgt L on the theory of implied 

bias. 

Legal and Factual Sufficiency

In his second AOE, the appellant alleges that the evidence 

adduced at trial is legally and factually insufficient to 

support his convictions. 

The test for legal sufficiency of the evidence is “‘whether 

considering the evidence in the light most favorable to the 

prosecution, a reasonable fact finder could have found all the 

essential elements beyond a reasonable doubt.’” United States 
7

v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United 

States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)). The test for 

factual sufficiency is whether we are convinced of the 

appellant’s guilt beyond a reasonable doubt, after weighing the 

evidence in the record of trial and making allowances for not 

having personally observed the witnesses. Turner, 25 M.J. at 

325. 

As to the violations of a lawful general order, there is no 

dispute that the orders against inappropriate relationships 

between recruiter and poolee were both in effect and lawful at 

the time of the appellant’s interactions with AS and CK. 

Additionally, there is little doubt that the appellant had a 

duty to obey that order as the Noncommissioned Officer in Charge

of Recruiting Substation Peoria where both AS and CK were being 

recruited. The only issue in dispute is whether the appellant 

actually failed to obey that order. 

The Government’s case in chief relied primarily on 

testimony by AS and CK, but was bolstered by additional 

testimony by AS’s mother and uncle, black box evidence from a 

government vehicle corroborating parts of AS’s testimony, 

appellant’s cell phone records, and photographs of text messages 

between the appellant and AS. 

As to the false official statement charge, the appellant 

was convicted of making a false entry into the Marine Corps 

Recruiting Information Support System (MCRIS) to the effect that 

CK had referred SG to the Marine Corps, thereby authorizing her 

promotion to private first class upon completion of boot camp. 

There is no dispute that the appellant entered SG into the MCRIS

as a referral of CK as his signature was on the document. 

Testimony from SG indicated that while he knew CK, he was not 

referred to the Marine Corps by her and that his involvement 

with Marine Corps in fact predated CK’s. Record at 350-53. 

Testimony from Captain DK, who conducted the investigation into 

the allegations made against the appellant, indicated that there 

was no individual listed as referring SG on his Prospective 

Applicant Card. Id. at 388-89. Capt DK’s testimony and 

documentary evidence further indicated that the appellant was 

CK’s recruiter, CK’s pool card indicated only one referral, and 

yet her MCRIS entry indicated SG was also her referral to bring 

her total to the two required for promotion. Id. at 384-86.

Finally, testimony from CK - against her own interest -

indicated that the appellant had agreed to put SG as a referral 

for CK if she could bring another recruit up to the minimum 
8

physical standard requirement, a task which she accomplished.

Id. at 310-11. 

Given these facts, we have little difficulty finding that 

the members had a factual basis to find the appellant guilty 

beyond a reasonable doubt. On balance, and with due regard for 

the fact that we did not observe the witnesses, we too are 

convinced of the appellant's guilt beyond a reasonable doubt. 

We find this assignment of error to be without merit. 

Sentence Appropriateness

In his third AOE, the appellant avers that the sentence 

adjudged by the members is inappropriately severe. He asks that 

this court affirm only so much of the sentence that calls for 

reduction to pay grade E-1 and 60 days’ confinement. 

“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 “‘individualized consideration’ 

of the particular accused ‘on the basis of the nature and 

seriousness of the offense and 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)). 

After reviewing the entire record and the pleadings by both 

parties, we find that the sentence is appropriate for this 

offender and his offenses. United States v. Baier, 60 M.J. 382, 

384-85 (C.A.A.F. 2005); Healy, 26 M.J. at 395-96; Snelling, 14 

M.J. at 268. Any consideration of appellant’s requested relief 

would amount to an act of clemency which is left to the “command 

prerogative” of the convening authority. Healy, 26 M.J. at 396. 

Unlawful Command Influence

In his final assignment of error, the appellant argues that 

apparent UCI flowing from the CMC’s Heritage Brief3 infected his 

trial. The appellant alleges that the Commandant’s Heritage 

 

3 For a more thorough description of the Heritage Brief, see United States v. 

Howell, No. 201200264, 2014 CCA LEXIS 321, unpublished op. (N.M.Ct.Crim.App. 

22 May 2014).
9

Brief constituted apparent unlawful command influence and as a 

remedy asks this court to set aside the findings and sentence.4 

When raised on appeal, the appellant carries the initial 

burden of showing “some evidence” of (1) facts that, if true, 

constitute UCI; (2) that the proceedings were unfair; and (3) 

that the UCI was the cause of the unfairness. United States v.

Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013) (citing United States 

v. Richter, 51 M.J. 213, 224 (C.A.A.F. 1999)). Although this 

initial threshold may be low, it requires more than “mere 

allegation or speculation.” Id. (citing United States v. 

Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002)). 

In his appeal, the appellant focuses on the appearance of 

unlawful influence. Appellant’s Brief of 17 Jan 2014 at 18. 

The test for the appearance of UCI is objective. “We focus upon 

the perception of fairness in the military justice system as 

viewed through the eyes of a reasonable member of the public.” 

United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006). An 

appearance of UCI arises “where an objective, disinterested 

observer, fully informed of all the facts and circumstances, 

would harbor a significant doubt about the fairness of the 

proceeding.” Id. We review allegations of UCI de novo. United 

States v. Harvey, 64 M.J. 13, 19 (C.A.A.F. 2006). 

Assuming arguendo that the appellant sufficiently raised 

the issue, we conclude beyond a reasonable doubt that any 

appearance of UCI was sufficiently ameliorated. During the 

group voir dire of potential panel members, the military judge 

sua sponte asked the members if they had attended any of the 

speeches the CMC made during the spring of 2012 which became 

known as the Heritage Brief. Eight of the ten potential members 

had attended the event in person and one potential member had 

either read articles about it, seen the video, or had heard 

comments about it. The military judge asked several follow-up 

questions to determine what impact, if any, the CMC’s comments 

had upon the potential members. All potential members indicated 

that they felt no pressure to find the appellant guilty or to 

give the appellant a particular sentence if he was found guilty 

of any offense. Evidently satisfied with the responses by the 

members, the trial defense counsel did not challenge any member 

for cause due to their exposure to the Heritage Brief comments 

and did not make a motion for any kind of relief alleging UCI. 

 

4 The appellant does not allege nor do we find any evidence of actual UCI in 

the record and we therefore limited our discussion and analysis accordingly. 
10

After reviewing the entire record, we conclude beyond a 

reasonable doubt that, assuming the issue was appropriately 

raised, any appearance of unlawful influence “had no prejudicial 

impact on the [appellant’s] court-martial.” United States v. 

Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010) (citing United States 

v. Biagase, 50 M.J. 143, 150-51 (C.A.A.F. 1999)).

 

Conclusion

The findings and the sentence as approved by the CA are 

affirmed. 

For the Court

 

 

R.H. TROIDL

Clerk of Court