UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

BRANDON J. BROWN

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

NMCCA 201300181

GENERAL COURT-MARTIAL

Sentence Adjudged: 24 April 2012.

Military Judge: LtCol C.A. Miracle, USMCR.

Convening Authority: Commanding General, 2d Marine Aircraft 

Wing, Cherry Point, NC.

Staff Judge Advocate's Recommendation: LtCol J.J. Murphy,

USMC.

For Appellant: Philip D. Cave, Esq.; LT Jennifer L. Myers, 

JAGC, USN.

For Appellee: Maj Paul M. Ervasti, USMC.

30 June 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.

WARD, Senior Judge:

A general court-martial consisting of officer and enlisted 

members convicted the appellant, contrary to his pleas, of 

making a false official statement, assault consummated by

battery, communicating a threat, and two specifications of 

wrongfully possessing firearms after having been convicted of a 

misdemeanor crime of domestic violence, in violation of Articles 

107, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. 
2

§§ 907, 928, and 934. The members sentenced the appellant to 

confinement for 15 years, reduction to pay grade E-1, total 

forfeiture of pay and allowances for 12 months, and a 

dishonorable discharge. The convening authority approved the 

sentence as adjudged.

On appeal, the appellant raises eight assignments of error

(AOE).

1 We address only two: admission of improper character

evidence under MILITARY RULE OF EVIDENCE 404(b), MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.) (AOE II), and legal sufficiency of 

the false official statement conviction (AOE VI). We find the 

remaining assignments of error either without merit (AOE I, III, 

IV, and V) or rendered moot (AOE VII and VIII) by our decision.2 

Having carefully considered the record of trial, the assignments 

of error and the parties’ pleadings, we find error that 

materially prejudiced both the findings and sentence, and take 

corrective action in our decretal paragraph.

3

 

1 I. That the military judge erred by denying the defense challenge for cause 

against Staff Sergeant [S];

II. That the military judge abused his discretion in ruling on a motion in

limine and on other evidentiary objections, which allowed for a constellation 

of errors which substantially prejudiced appellant’s right to a fair trial;

III. That the guilty finding for assault and battery is factually and legally 

insufficient;

IV. That the military judge abused his discretion by denying the appellant’s 

motion to suppress wherein Sergeant Major [S] made statements which he knew 

or had reason to believe were false, or were made with reckless disregard for 

the truth;

V. That the guilty findings for wrongfully possessing firearms in violation 

of 18 U.S.C. § 922(g)(9) are neither factually nor legally sufficient;

VI. That the guilty finding for making a false official statement is neither 

factually nor legally sufficient;

VII. That the offenses for violation of 18 U.S.C. § 922(g)(9) are 

unreasonably multiplied both for findings and sentencing; 

VIII. That the appellant’s sentence to confinement for 15 years is 

inappropriately severe.

2 As to AOE VII, the appellant’s claim that his guilty findings under 18 

U.S.C. § 922(g)(9) for possession of two loaded firearms in the trunk of his 

car are unreasonably multiplied, we note that the Government concedes on 

appeal that it is “well established that the simultaneous possession of 

several weapons constitutes only one offense” for purposes of 18 U.S.C. § 

922(g)(9). Appellee’s Brief of 18 Feb 2014 at 39. 

3 Additionally, we note that the time between sentencing and the convening 

authority’s action exceeded 120 days. Balancing the four factors under 
3

Factual Background

This case arose out of a series of domestic disturbances 

involving the appellant and his wife, EB. In 2011, the 

appellant was convicted in District Court, Onslow County, North 

Carolina, for misdemeanor assault of EB, and received a sentence 

of 60 days confinement suspended for twelve months. He later 

stipulated at his court-martial that this conviction was a 

“misdemeanor crime of domestic violence.”4 

On 1 April 2012, EB called 911 and reported that her 

husband was threatening to kill her at their off-base apartment.

On 28 April 2012, a neighbor called 911 and reported that he 

could hear “spousal abuse” coming from the appellant’s

apartment, that he could hear a female voice “screaming and 

crying,” and that this was “not the first time [he’s] heard them 

fighting.”5

On 29 April 2012, a civilian acquaintance of the appellant, 

Mr. G, reported to base military police an incident with the 

appellant occurring earlier that day. That morning, he alleged, 

the appellant accosted him while pointing a pistol at him. 

However, Mr. G. later refused to cooperate with military police 

in any investigation.

On 10 June 2012, EB again called 911 and told the operator 

that she wanted to “report a domestic violence” against her 

husband because he had “jumped on [her] and stuff.”6 When police 

arrived, EB told them that she and her husband had been arguing 

when he “punched her in the face, threw her on the ground and 

started kicking her . . . .”7 The police officers took photos of 

a knot on EB’s forehead and several bruises. Once they 

explained that they would arrest her husband, however, EB’s 

demeanor changed and she asked them not to arrest him or take 

any further action. She then refused to sign any statement and 

instructed her friend who was present to do the same. They both 

 

United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), we find no posttrial due process violation occurred.

4 Prosecution Exhibit 2.

5 PE 7.

6 PE 8. 

7 Record at 361. 
4

declined to give any further details and refused to cooperate in 

any investigation. 

On 12 June 2012, the appellant’s commanding officer ordered 

him into pretrial confinement. After his Initial Review Officer 

(IRO) hearing the following day, the appellant was sitting in an 

office with his command legal officer and another member of his 

squadron. The three were eating sandwiches and discussing the 

hearing while awaiting completion of the IRO’s report. As they 

talked, the appellant commented that “he didn’t even own a 

weapon” or words to that effect.8 

While the appellant was in pretrial confinement, members of 

his command obtained authorization to search his car, which was 

parked on base. On 22 June 2012, they executed a search of the 

vehicle. In a green storage bin located in the trunk, they 

found a .45 ACP pistol and .038 pistol, each with a loaded 

magazine inserted and an additional 50 rounds of .45 ACP 

ammunition in a carrying case. 

At trial, the appellant faced charges for communicating a 

threat to EB on 1 April 2012 and two specifications of assault 

and battery of EB on 10 June 2012;9 one specification for making 

a false official statement for his comment following the IRO 

hearing; and four specifications of 18 U.S.C. § 922(g)(9) for 

wrongfully possessing two firearms and ammunition in the trunk 

of his car.10 

 

Improper Character Evidence

 

8 Id. at 308.

9 The military judge later consolidated these offenses prior to findings. Id. 

at 461-62.

10 These four specifications were all charged under clauses (1), (2) and (3) 

of Article 134, UCMJ. The clause (3) offenses were pleaded as violations of 

Title 18 U.S.C. § 922(g)(9) (“Lautenberg violations”), which prohibits anyone 

with a misdemeanor conviction for domestic violence from possessing, 

shipping, transporting, or receiving any firearm or ammunition. Effective 30 

September 1996, this provision was added to The Gun Control Act of 1968 

through legislation sponsored by the late Sen. Frank Lautenberg (D-NJ). See

104 P.L. 208, § 658. The specification for wrongfully possessing .45 ACP

ammunition was later dismissed by the military judge under RULE FOR COURTSMARTIAL 917, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Record at 467-68. 

The members found the appellant guilty of the two specifications involving 

possession of a firearm and not guilty of sole remaining specification 

involving possession of .380 ammunition. Id. at 515. 
5

In light of several evidentiary challenges, the Government 

served notice to the defense of evidence it intended to offer at 

trial pursuant to MIL. R. EVID. 404(b). This evidence consisted 

of previous domestic disturbance calls to 911 and the above 

incident involving Mr. G. During the pretrial motion hearing, 

the Government argued that the previous 911 calls and related 

police reports provided evidence of the appellant’s intent and 

plan to abuse his wife, and further defeated any accidental 

cause of EB’s injuries on 10 June 2012.11 

The Government then posited that the incident involving Mr. 

G revealed the appellant’s knowledge of and intent to possess 

one of the firearms later recovered from his vehicle. This was 

due to the similarity between the pistol Mr. G described and the 

one later recovered from the appellant’s vehicle.12 

Ultimately, the military judge agreed, concluding that the 

brandishing of a firearm was relevant to show knowledge to rebut 

any claim of mistake or accident concerning the Lautenberg 

violations. Similarly, he concluded that the previous 911 calls 

were relevant to rebut any claim of mistake or accident on the 

charge of spousal battery. The military judge also concluded 

that this evidence was not substantially outweighed by the 

danger of unfair prejudice. 

A. Principles of Law

We review a military judge’s evidentiary rulings for an 

abuse of discretion.13 When a military judge balances the 

competing interests in admitting or excluding evidence, we will 

give great deference to a clearly articulated basis for his 

 

11 Appellate Exhibit XVI at 5-6. Trial counsel argued that these previous 

instances of “domestic abuse” were relevant to the appellant’s knowledge and 

intent to physically injure his wife without leaving signs of visible abuse. 

Record at 86. Although originally described as four previous occasions, the 

military judge later clarified that the trial counsel was referring to three 

previous instances where police were called over a report of a domestic 

disturbance: 2 January 2011, for which the appellant was later convicted of 

assault of a female in Onslow County, North Carolina; 31 July 2011 and 28 

April 2012. Id. at 86–92. At trial, the Government never offered any 

evidence concerning a domestic disturbance on 31 July 2011. 

12 AE XVI at 5. At trial, Mr. G testified that the pistol the appellant 

pointed at him was “a black 9[mm] or .45, one of the two.” Record at 394.

13 United States v. Thompson, 63 M.J. 228, 230 (C.A.A.F. 2006).
6

decision. Conversely, when there is no such clearly articulated 

basis, we will be less deferential in our review.

14 

Evidence of uncharged misconduct is not admissible to prove 

the character of an accused or show that the accused acted in 

conformity with a certain character trait. But evidence of 

uncharged misconduct may be admissible for other purposes, such 

as proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, mistake, or accident.15 

The three-part test for admitting evidence under MIL. R.

EVID. 404(b) is set forth in United States v. Reynolds, 29 M.J. 

105, 109 (C.M.A. 1989). First, the evidence must reasonably 

support a finding that the appellant committed prior crimes, 

wrongs, or acts. Second, the evidence must show a fact of 

consequence is made more or less probable by the existence of 

this evidence. Third, the probative value of the evidence must 

not be substantially outweighed by the danger of unfair 

prejudice. Id.; see also United States v. Barnett, 63 M.J. 388, 

394 (C.A.A.F. 2006). 

B. The 2011 Misdemeanor Conviction and the 911 Calls of 1 April

2012, 28 April 2012 and 10 June 2012

During direct examination, the trial counsel posed several 

questions to EB concerning the appellant’s 2011 arrest and 

conviction in Onslow County, North Carolina. EB admitted that 

she knew her husband was convicted of a crime of domestic 

violence but was unaware it prohibited him from owning or 

possessing any firearm.16 Trial counsel then queried EB on her 

911 call of 1 April 2012, where she reported that her husband 

threatened to kill her; her neighbor’s call to 911 on 28 April 

2012 reporting spousal abuse; and EB’s 911 call on 10 June 2012 

when she reported domestic violence. Many of EB’s responses 

were noncommittal or less than forthcoming. 

On the Lautenberg violations, EB described how she 

purchased a .45 caliber pistol from a local firearms dealer 

based on the recommendation of her husband. Evidence revealed 

that her husband in fact attempted to purchase the same model 

weapon, a Rock Island 1911 .45 ACP, from the same dealer 

approximately one week earlier, but was unable to do so because 

 

14 United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000). 

15 MIL. R. EVID. 404(b).

16 Record at 343-44; PE 21.
7

of his disqualifying conviction.17 EB testified that she was 

unaware of her husband’s earlier unsuccessful efforts and that 

she only purchased the weapon for herself. 

She also described how in May or June of 2012, she drove

his car to the local Wal-Mart. There she placed her pistol in 

her purse before she went inside the store. When she came out, 

she removed the pistol from her purse and placed it in the 

trunk. She then testified that she ultimately left it in the 

trunk and failed to inform her husband.18 

When pressed by the trial counsel for details of her 

husband’s actions on 10 June 2012, EB denied that he ever 

punched or kicked her. She was evasive, despite trial counsel’s 

reference to the 911 call where she told the operator that she 

wanted to “report a domestic violence” by her husband who 

“jumped on [her] and stuff.”19 She did concede that she “might 

have been stepped on” and that she might have been struck by the 

front door when the appellant shoved his way inside.20 Trial 

defense counsel later described this as a “tussle” during 

argument21 and the military judge instructed the panel on the 

defenses of accident and self-defense.22

Turning to MIL. R. EVID. 404(b), we begin by noting that some 

of this evidence proffered by the Government and admitted by the 

military judge was either direct evidence or intrinsic thereto 

of an element of a charged offense. In that vein, we find that 

EB’s testimony concerning her 911 call on 1 April 2012 and the 

recording itself, and her testimony concerning the appellant’s 

conviction in Onslow County, North Carolina inapt to our MIL. R.

EVID. 404(b) analysis.23 

 

17 Id. at 292, 345-46; PE 10, 11.

18 Record at 344-49.

19 Id. at 352-54; PE 8.

20 Record at 352-60.

21 Id. at 486-87. 

22 Id. at 498-99.

23 See United States v. Doss, 15 M.J. 409, 412 n.5 (C.M.A. 1983) (recognizing 

as a general rule that evidence as to uncharged misconduct ”will be 

admissible, if it is part of the same transaction as the crimes with which 

the accused is charged”) (citing United States v. Thomas, 11 M.J. 388, 392-93 

(C.M.A. 1981)).
8

However, we find that the military judge erred in admitting 

the neighbor’s call to 911 on 28 April 2012 and the related 

testimony by EB for the purposes offered by the Government and 

ostensibly relied upon by the military judge.24 While EB’s 

testimony raised the issue of accidental injuries and the 

military judge instructed the panel accordingly, the 911 call of 

28 April 2012 provided little rebuttal value to EB’s testimony 

that her injuries could have been caused by the apartment door 

or during a scuffle over the appellant’s cell phone. The 

neighbor who called 911 provided no specific details as to what 

happened, what injuries resulted, or who was responsible. This 

evidence only provided a generalized picture of domestic 

disturbance that the Government later cast as proof of an 

ongoing pattern of spousal abuse at the hands of the appellant.25

Furthermore, the military judge’s limiting instruction at 

the beginning of presentation of evidence and during his 

instructions on findings offered little guidance on filtering 

out any impermissible implication raised.26 The only 404(b) 

theories relied upon by the military judge were accident with 

respect to the spousal battery offense and knowledge with 

respect to the Lautenberg violations. The Government never 

raised and the record reveals no issue of identity, motive or 

opportunity with respect to any offense. Yet the military judge 

instructed the panel that they could consider this evidence for 

those purposes and in doing so he erred. See Thompson, 63 M.J. 

 

24 The military judge concluded that evidence of previous incidents of 

domestic violence would rebut any claim of mistake or accident in the charged 

offense of assault and battery of EB on 10 June 2012. AE XLVII at 6. The 

military judge made no reference to the Government’s additional theory that 

this evidence showed an intent and plan to physically abuse EB without 

leaving any telltale signs. 

25 Record at 281, 478. The Government also called a forensic psychologist who 

testified to the “ongoing cycle of violence” phenomenon in battered spouse 

cases, and that in her opinion the abuse to EB “seems to be increasing in 

terms of 911 calls and threats of violence.” Id. at 433, 442-443. 

26 Id. at 281-84, 475-84. During his findings instructions, the military 

judge advised the members that they may consider evidence of “alleged 

incidents on 2 January 2011, 31 [July] 2011, and 28 April 2012 between the 

[appellant] and [EB], as well as the alleged incident on 29 April 2012 

between the [appellant] and Mr. [G] for the limited purpose of its tendency, 

if any, to identify the [appellant] as the person who committed the offenses 

alleged . . . . [or] to prove a plan or design by the [appellant] to engage 

in the charges and specifications . . . . [or] to prove[] knowledge and 

intent . . . [or] motive and opportunity to commit the offenses before you.” 

He then proceeded to caution against using this evidence to infer any general 

criminal tendency. Id. at 504. 
9

at 231 (finding error when a military judge admits 404(b) 

evidence for purposes not relevant at trial). 

We also find that the military judge erred in his MIL. R.

EVID. 403 balancing. First, we note that his balancing, 

articulated only in his written ruling attached to the record a 

month after trial (Appellate Exhibit XLVII), merely recites the 

rule. Therefore, we afford his ruling less deference than we 

might otherwise.27 The ruling does not articulate the probative 

value, the attendant prejudice, or any balancing except to note 

that any concern of such prejudice or confusion could be 

remedied through a proper limiting instruction. As noted 

earlier, the limiting instruction given only added to, rather 

than lessened, the risk of confusion and prejudice. 

Here, the probative value of an uncharged domestic 

disturbance was relatively low since the Government already 

admitted evidence of domestic disturbances on 2 January 2011 and 

the two charged occasions: 1 April 2012 and 10 June 2012. 

Little was gained by admitting another 911 call concerning a 

fourth domestic incident. With so little probative value, the 

risk of unfair prejudice rises where the Government painted the 

appellant as an abusive husband with increasingly broad brush 

strokes. 

C. Mr. G’s Testimony

The admission of evidence concerning the uncharged incident 

of 29 April 2012 is more troubling. A former Marine and an 

acquaintance of the appellant, Mr. G testified that he went to 

the house of Ms. R, someone with whom he previously had an 

intimate relationship, that Sunday morning to take their 

daughter to church. When he arrived, he recognized the 

appellant’s car parked outside. After knocking on the door, Ms. 

R turned him away because, as Mr. G explained at trial, she and 

the appellant were “having relations at the time.”28 Mr. G then 

left.

Approximately 30 minutes later, he returned, this time to 

be accosted by the appellant who “came outside . . .[with] a gun 

in his hand. He cocked the gun. He brandished the gun at 

[him], walked around [him], saying a couple of words.”29 Moments 

later Mr. G explained that the appellant said “act tough now” 

 

27 Barnett, 63 M.J. at 396. 

28 Record at 394.

 

29 Id. at 392-93.
10

and that he “cocked his gun and he pointed it at [him] . . .

[from] [p]robably eight feet [away].”30 Mr. G described the 

weapon in the appellant’s hand that day as “a black 9[mm] or a 

.45, one of the two.”31 

EB’s testimony that she purchased the Rock Island .45 ACP 

and that she put it in the trunk of the appellant’s car 

reasonably raised the issue of the appellant’s knowledge, at 

least as to possession of the .45. Therefore, Mr. G’s testimony 

putting a similar weapon in the appellant’s hand a month and a 

half earlier had some probative value. Our concern, however, is 

solely with the third Reynolds prong and the highly prejudicial 

circumstances surrounding this incident placed squarely before 

the members. 

Prejudice in the context of MIL. R. EVID. 403 is defined as 

the “‘capacity of some concededly relevant evidence to lure the 

factfinder into declaring guilt on a ground different from proof 

specific to the offense charged.’”

32 Despite the defense 

pretrial motion raising this concern, the military judge 

displayed very little sensitivity to potential prejudice arising 

from this evidence. He articulated no balancing on the record 

at the time of his ruling, and his written findings and 

conclusions attached to the record after trial give little 

insight. Consequently, we grant less deference.33 

The only issue in dispute was whether the appellant knew 

that the two pistols and ammunition were in the trunk of his 

car. But any limited inferential value of Mr. G’s testimony was 

quickly overwhelmed amidst details of a cheating husband and an 

aggressive provocateur threatening Mr. G with a presumably 

loaded pistol. The unfair prejudice arising from these 

unnecessary and inflammatory details far outweighed the 

similarity between this “9 or .45” and the .45 ACP later seized 

from the appellant’s car. Furthermore, the military judge’s 

overly expansive limiting instruction made matters worse. 

Considering that the trial counsel highlighted the 

appellant’s provocative and belligerent response to Mr. G during 

 

30 Id. at 394, 398. 

31 Id. at 394.

32 United States v. Collier, 67 M.J. 347, 354 (C.A.A.F. 2009) (quoting Old 

Chief v. United States, 519 U.S. 172, 180 (1997)). 

33 United States v. Berry, 61 M.J. 91, 96 (C.A.A.F. 2005).

 
11

both opening statement and closing argument,34 the risk of 

improper influence upon the members from this evidence is simply 

too great.35 Applying the appropriate amount of deference, we 

find that the military judge erred in his MIL. R. EVID. 403 

balancing test by admitting these highly prejudicial details in 

Mr. G’s testimony that offered no probative value.

D. Material Prejudice

Having determined that the military judge abused his 

discretion by admitting evidence of the 911 call on 28 April 

2012 and the incident with Mr. G, we must determine next whether 

these errors materially prejudiced the substantial rights of the 

appellant.36 For errors of a non-constitutional dimension, the 

Government bears the burden of demonstrating that the error did 

not substantially influence the findings or sentence.37 We make 

our determination by evaluating: “(1) the strength of the 

Government’s case, (2) the strength of the defense case, (3) the 

materiality of the evidence in question, and (4) the quality of 

the evidence in question.”

38 

The Government’s case overall was strong. The only 

disputed issue as to the Lautenberg offenses was the appellant’s 

knowledge of possession. Evidence was admitted showing that he 

attempted to purchase the very same .45 ACP nine days before his 

wife’s successful purchase of the same type of firearm. 

Although EB testified that the .45 ACP was “hers” and that she 

placed it in the appellant’s trunk without his knowledge, her 

testimony lacked credibility. As to the remaining .380 pistol, 

knowledge of possession was not reasonably in dispute since a 

witness testified placing that weapon in the appellant’s trunk 

 

34 Record at 281-82, 478-79. Trial counsel highlighted the aggressive nature 

of the appellant’s conduct arguing “and the [appellant] does not care for 

[Mr. G’s interruption], because he and Ms. [R] apparently need their alone 

time. So he comes out the front door and points a .45 at Mr. [G’s] chest. 

Not only does he point it at him, but Mr. [G] can hear it cocked. And Mr. 

[G] testified, he then told him, ‘Act tough now, act tough now.’” Id. at 

478-79.

 

35 “[T]here are some contexts in which the risk that the jury will not, or 

cannot, follow instructions is so great, and the consequences of failure so 

vital to the defendant, that the practical and human limitations of the jury 

system cannot be ignored.” Bruton v. United States, 391 U.S. 123, 135 (1968)

(citations omitted).

36 Art. 59(a), UCMJ.

 

37 Berry, 61 M.J. at 97. 

 

38 Barnett, 63 M.J. at 397 (quoting United States v. Kerr, 51 M.J. 401, 405 

(C.A.A.F. 1999)).
12

with his permission. Finally, witnesses from the appellant’s 

command described the appellant’s earlier suspicious behavior 

when they escorted him to retrieve some personal items from the 

trunk of his car. 

On the remaining offenses for assaulting and threatening 

EB, the Government’s case was still strong despite EB’s often 

inconsistent and uncooperative testimony. EB did admit that her 

husband “threatened to shoot [her]” and “at the time, [she] 

thought he was serious, but now [she doesn’t] believe he would 

do it.”39 Her 911 call of 1 April 2012 played for the members 

corroborated this testimony. While she was uncooperative at 

times with the trial counsel, her obvious bias toward her 

husband enhanced her credibility on the points of her testimony 

that aligned with the Government’s theory. 

The defense case, on the other hand, was not as strong. 

Trial defense counsel rested without presenting any case-inchief, instead relying on cross-examination, the presumption of 

innocence, and the burden of proof.

Evidence of the appellant’s predisposition, however, 

whether in the form of uncharged acts of domestic disturbance or 

evidence of a violent character as seen through Mr. G’s 

testimony, went directly to a principal issue in the case; the 

appellant’s abusive nature toward his wife. Indeed, the 

appellant’s abuse of his wife was the focus of the Government’s 

forensic psychologist who testified to the common characteristic 

of a battered spouse and the increasing risk of abuse to EB. 

True, trial defense counsel referred to the altercation between 

EB and the appellant as a “tussle” and the military judge 

instructed the panel on the defenses of accident and selfdefense. But the Government effectively handed the members a 

canvas with the appellant painted as an abusive and aggressive 

individual prone to extreme responses to seemingly mild 

provocation. This evidence is exactly the type of “new 

ammunition” on a fact at trial that increases the risk of 

prejudicial error.40 

The role this evidence played at trial, particularly the 

incident with Mr. G, was significant. During closing argument, 

 

39 Record at 350. 

40 See United States v. Yammine, 69 M.J. 70, 78 (C.A.A.F. 2010) 

(distinguishing between a “fact already obvious from . . . testimony at 

trial” and evidence that provides “new ammunition” the latter increasing the 

chances of prejudicial error) (internal quotation marks and citation 

omitted).
13

trial counsel mentioned both the 28 April 2012 911 call and Mr. 

G’s testimony. Regarding Mr. G, the trial counsel recounted the 

whole story, emphasizing that in order to secure his “alone 

time” with Ms. R, the appellant pointed and cocked a “.45” at 

Mr. G’s chest.41 In rebuttal argument, trial counsel reiterated 

the theme of ongoing violence in the marriage citing their 

forensic psychologist’s testimony describing a “cycle of 

violence.”42 The total effect was to paint a picture, reinforced 

by expert testimony, that the appellant had an abusive and 

violent nature, and thus more likely acted in conformity

therewith.

This picture of an abusive and violent predisposition 

carried over into sentencing. In arguing for sentence, the 

assistant trial counsel alluded to the appellant’s unsavory 

nature and argued that five year’s confinement would send a 

message to other Marines: 

that [sic] may like to dabble in some sort of 

lifestyle, you know, trying to be something that 

they’re not supposed to be, not a stand-up guy in a 

Marine [sic] and a father and a husband, but a punk 

running around with weapons loaded, acting foolish, 

doing things that sully our reputation, our uniform, 

and our standards.43 

The members then returned a sentence of fifteen year’s 

confinement – tripling the Government’s recommended sentence of 

five years. 

Given the inflammatory nature of Mr. G’s testimony, the 

Government’s emphasis on the unnecessary and prejudicial details 

it offered, and the military judge’s erroneous limiting 

instruction, we conclude that the Government has not met its 

burden of establishing that the improperly admitted evidence did 

“did not have a substantial influence on the findings.”44 We 

also find the error materially prejudiced the sentence. 

False Official Statement

 

41 Record at 478.

42 Id. at 491.

43 Id. at 523 (emphasis added).

 

44 United States v. McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003) (citation 

omitted). 
14

We next turn to the question of the appellant’s conviction 

for his statement to Gunnery Sergeant (GySgt) N and GySgt T,

following his IRO hearing, that “he didn’t even own a weapon.” 

We review factual and legal sufficiency de novo.

45 The test for 

legal sufficiency is whether, “considering the evidence in the 

light most favorable to the prosecution, any reasonable factfinder could have found all the essential elements beyond a 

reasonable doubt.”

46 For factual sufficiency, we must be 

ourselves convinced of the appellant’s guilt beyond a reasonable 

doubt taking into account that the trial court saw and heard the 

witnesses.47 

Article 107, UCMJ, criminalizes the making of false 

official statements. “[T]o determine whether a false statement 

is official, or capable of perverting authorized military 

functions, ‘the critical distinction is . . . . whether the 

statements relate to the official duties of either the speaker 

or the hearer . . . .’”

48 

Shortly before calling GySgt T, trial counsel proffered 

that GySgt T was “the Legal Officer of . . . VMFA-312 [and] was 

executing [his] duties per the IRO hearing” when the appellant 

allegedly made his statement.49 However, when GySgt T took the 

stand his testimony took a slightly different turn. He 

testified that this conversation occurred following the IRO 

hearing, back at the command headquarters. The appellant, GySgt 

T, and GySgt N were sitting in GySgt T’s office eating 

sandwiches while awaiting the completion of the IRO’s report. 

GySgt T described the conversation as follows:

As we were sitting there eating, we were sort of going 

over some things that were said in the hearing and 

Gunnery Sergeant [N] and I were just trying to get a 

grasp on what was going on and different things of 

that nature and you know, we didn’t – we never read 

 

45 United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

46 United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United 

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

47 Washington, 57 M.J. at 399; see also Art. 66(c), UCMJ. 

48 United States v. Spicer, 71 M.J. 470, 474 (C.A.A.F. 2013) (quoting Day, 66 

M.J. at 174).

49 Record at 304.
15

him his rights because we weren’t questioning him. We 

were just talking to him trying to make sure that we,

as his Staff NCOS, were taking care of him. And we 

were sort of going over what was [] said in the 

hearing and [the appellant] was saying different 

things and then one of the things that he said was, 

‘They brought up me yielding a weapon in 2008 and I 

don’t even own a weapon.’ So, you know, which made us 

think, like I said, we were just trying to figure out 

what was going on, what was our best course of action 

to help him and things of that nature.50 

When GySgt N took the stand, he corroborated much of GySgt 

T’s testimony. However, on cross-examination, he described a 

conversation whereby GySgt T asked the appellant if “he had 

anything illegal” in his car and likened the conversation to “an 

amnesty period.”51

While these conflicting accounts paint a confusing picture 

of what exactly was said, the two clearly had an official duty 

to keep custody of the appellant. But an informal conversation 

over sandwiches, one that GySgt T characterized as having 

nothing to do with his function as the legal officer, bore no 

bearing to any dialogue necessary to the appellant’s detention. 

We therefore conclude that this statement lacked 

officiality within the meaning of Article 107, UCMJ. The 

appellant’s conviction for making a false official statement is 

therefore legally insufficient.

Conclusion

The findings and sentence are set aside. Charge II and its 

sole specification (false official statement) are dismissed with 

prejudice. The record of trial is returned to the Judge

Advocate General of the Navy. A rehearing on the remaining 

charges is authorized. 

 

50 Moments later, GySgt T confirmed that he was not acting in his duties as 

the command legal officer when the appellant made this statement. Id. at 

308-09.

51 Id. at 338. 
16

Judge MCFARLANE and Judge MCDONALD concur. 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court