UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Lieutenant Colonel PAMELA L. NOVY

United States Air Force

ACM 38554

14 July 2015

Sentence adjudged 19 December 2013 by GCM convened at Joint Base 

Elmendorf-Richardson, Alaska. Military Judge: Lyndell M. Powell and 

Matthew P. Stoffel.

Approved Sentence: Dismissal and a reprimand.

Appellate Counsel for the Appellant: Major Nicholas D. Carter and 

Major Isaac C. Kennen.

Appellate Counsel for the United States: Major Jeremy D. Gehman; 

Major Jason M. Kellhofer; and Gerald R. Bruce, Esquire.

Before

ALLRED, SANTORO, and TELLER

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4.

SANTORO, Judge:

A general court-martial composed of officer members convicted the appellant, 

contrary to her plea, of one specification of wrongfully using marijuana in violation of 

Article 112a, UCMJ, 10 U.S.C. § 912a. The adjudged and approved sentence consisted 

of a dismissal and a reprimand. The appellant argues that (1) she was selectively 

prosecuted, (2) the court-martial lacked jurisdiction because women were improperly 

excluded from the panel, (3) court-martial verdicts that do not require unanimity violate 

due process, (4) the military judge erred by allowing trial counsel to ask a voir dire 
2 ACM 38554

question not reasonably calculated to elicit potential bias, and (5) the evidence is legally 

and factually insufficient to sustain the conviction. We disagree and affirm.

Background

The appellant, commander of the base mental health flight with over 17 years of 

Air Force and Army service, was randomly selected to provide a urine sample for testing 

pursuant to the Air Force’s Drug Demand Reduction Program. Her sample tested 

positive for tetrahydrocannabinol, a metabolite of marijuana. This court-martial followed.

Additional facts necessary to resolve the assigned errors are included below.

Selective Prosecution

After receiving the report of the positive urinalysis result, base drug testing 

authorities notified the appellant’s commander and the Air Force Office of Special 

Investigations. That same day investigators summoned the appellant for an interview. 

She invoked her right to counsel and declined to answer questions.

Approximately 21 days later, the appellant’s squadron commander, Colonel (Col) 

RH, ordered the appellant to her office. Col RH knew that the appellant had previously 

requested counsel. Without providing an Article 31, UCMJ, 10 U.S.C. § 831, rights 

advisement, Col RH said, “I want to give you an opportunity one last time to tell me your 

side of the story, if there’s anything you’d like to say.” The appellant declined to make a 

statement. According to Lieutenant Colonel (Lt Col) SB, the squadron’s deputy 

commander, prior to this meeting Col RH told Lt Col SB that if the appellant “was 

willing to tell her what happened, if there was perhaps an explanation, that she might be 

able to just give her an Article 15 rather than prefer charges.” Lt Col SB further testified 

that the appellant’s decision not to make a statement was the “deciding factor in 

preferring charges” for Col RH.

Lt Col SB testified that there had been a major under Col RH’s command who had 

been stealing and illegally using medication. Lt Col SB testified that the major’s case 

involved “a lot of extenuating circumstances.” Despite the major’s decision to “share and 

talk through the issues” with Col RH, charges were still preferred, but Col RH supported 

the major’s resignation in lieu of trial.

The appellant made no claim of selective prosecution at trial. Instead, the 

evidence summarized above was elicited in the context of a defense motion for credit for 

illegal pretrial punishment under Article 13, UCMJ, 10 U.S.C. § 813, in which the main 

claim was that the appellant’s command had impermissibly suspended her clinical 

privileges and downgraded her officer performance report in light of the allegations 

against her.
3 ACM 38554

We review allegations of selective prosecution de novo. United States v. Argo, 

46 M.J. 454, 463, (C.A.A.F. 1997). “To support a claim of selective or vindictive

prosecution, an accused has a ‘heavy burden’ of showing that ‘others similarly situated’ 

have not been charged, that ‘[s]he has been singled out for prosecution,’ and that [her]

‘selection . . . for prosecution’ was ‘invidious or in bad faith, i.e., based upon such 

impermissible considerations as race, religion, or the desire to prevent [her] exercise of 

constitutional rights.’” Id. at 463 (quoting United States v. Garwood, 20 M.J. 148, 154 

(C.M.A. 1985)) (third alteration in original).

We need look no further than the first Argo prong. There is insufficient evidence 

that the appellant and the major were similarly situated. The record does not reflect the 

frequency or duration of the major’s conduct as compared with appellant’s. Nor does it 

reflect what the major’s “extenuating circumstances” were or how they compared with 

the appellant’s case. While we do know that both the major and the appellant had 

charges preferred, we do not know whether the appellant ever sought resignation in lieu 

of court-martial. The appellant has therefore failed to meet her “heavy burden” to 

establish that she and the major were similarly situated.

Exclusion of Women from the Panel

The appellant challenges the jurisdiction of the court-martial, arguing that the 

convening authority improperly excluded women from consideration for service. We 

review de novo whether a panel has been properly selected. United States v. Dowty, 

60 M.J. 163, 171 (C.A.A.F. 2004). 

“‘As a matter of due process, an accused has a constitutional right, as well as a 

regulatory right, to a fair and impartial panel.’” United States v. Downing, 56 M.J. 419, 

421 (C.A.A.F. 2002) (quoting United States v. Wiesen, 56 M.J. 172, 174 

(C.A.A.F. 2001)). Article 25(a), UCMJ, 10 U.S.C § 825(a), generally provides that 

“[a]ny commissioned officer on active duty is eligible to serve on all courts-martial.”

Section 25(d), UCMJ, however, establishes limits on this eligibility: members junior in 

rank or grade to the accused are ineligible to serve “[w]hen it can be avoided.” From 

among the remaining officers eligible to serve on a court-martial panel, “the convening 

authority shall detail as members thereof such members . . . as, in his opinion, are best 

qualified for the duty by reason of age, education, training, experience, length of service, 

and judicial temperament.” Article 25(d)(2), UCMJ. The convening authority may rely 

on staff and subordinate commanders to compile a list of eligible members. Dowty, 

60 M.J.at 169–70.

In this case, the special court-martial convening authority nominated 15 members 

to serve on the appellant’s court-martial. The general court-martial convening authority 

selected 12 of the 15 nominees. None of the nominees were female. Without offering 
4 ACM 38554

any supporting evidence, the appellant argues for the first time on appeal that because 

there were no women nominated or selected, the convening authority must have 

improperly excluded women from consideration.

As there is no evidence supporting the conclusion that women were intentionally 

excluded from consideration, we conclude that there has been no violation of the 

appellant’s due process rights, nor any lack of jurisdiction in her court-martial. The 

appellant argues (without evidentiary support in the record) that the commissioned officer 

corps in 2013 was approximately 20 percent female but makes no attempt to identify how 

many of those officers would have been senior to her, assigned within the general courtmartial convening authority’s command, available to perform court-martial duty, or other 

relevant considerations. The appellant concedes that there is no evidence of bad faith; 

instead, she suggests that we adopt a requirement that women be included on every courtmartial of a female. This is not the law, and we decline to adopt that position. 

Right to a Unanimous Verdict

The appellant contends that the government violated her Fifth Amendment1right 

to due process of law because she was convicted by a court-martial panel consisting of 

only six members whose verdict did not have to be unanimous. The appellant relies on 

the Supreme Court’s rulings in Ballew v. Georgia, 435 U.S. 223 (1978), and Burch v. 

Louisiana, 441 U.S. 130 (1979), to support her position that she was entitled to a jury 

with at least six members and that she could only be found guilty by a unanimous vote. 

In Ballew, the Supreme Court held that a trial consisting of a jury of less than six persons 

deprives a defendant of the right to trial by a jury as contemplated by the Sixth 

Amendment.2435 U.S. at 245. The decision was based on empirical studies showing 

that “the purpose and functioning of the jury in a criminal trial is seriously impaired, and 

to a constitutional degree, by a reduction in size to below six members.” Id. at 239. 

Subsequently, in Burch, the Court held that conviction by a nonunanimous six-member 

jury also fails to comply with the Sixth Amendment, saying:

[M]uch the same reasons that led us in Ballew to decide that 

use of a five-member jury threatened the fairness of the 

proceeding and the proper role of the jury, lead us to conclude 

now that conviction for a nonpetty offense by only five 

members of a six-person jury presents a similar threat to 

preservation of the substance of the jury trial guarantee and 

justifies our requiring verdicts rendered by six-person juries 

to be unanimous.

 

1 U.S. CONST. amend. V.

2 U.S. CONST. amend. VI.
5 ACM 38554

441 U.S. at 138.

In O’Callahan v. Parker, 395 U.S. 258 (1969), overruled on other grounds by 

Solorio v. United States, 483 U.S. 435 (1987), the Supreme Court explained:

The Constitution gives Congress power to “make Rules for 

the Government and Regulation of the land and naval 

Forces,” and it recognizes that the exigencies of military 

discipline require the existence of a special system of military 

courts in which not all of the specific procedural protections 

deemed essential in Art. III trials need apply. The Fifth 

Amendment specifically exempts “cases arising in the land or 

naval forces, or in the Militia, when in actual service in time 

of War or public danger” from the requirement of prosecution 

by indictment and, inferentially, from the right to trial by jury. 

The result has been the establishment and development of a 

system of military justice with fundamental differences from 

the practices in the civilian courts.

Id. at 261–62 (internal citations and emphasis omitted).

If the case does not arise in the land or naval forces, then the accused gets, first, 

the benefit of an indictment by a grand jury and, second, a trial by jury before a civilian 

court as guaranteed by the Sixth Amendment and by Article III, Section 2, of the 

Constitution, which provides, in part:

The Trial of all Crimes, except in Cases of Impeachment, 

shall be by Jury; and such Trial shall be held in the State 

where the said Crimes shall have been committed; but when 

not committed within any State, the Trial shall be at such

Place or Places as the Congress may by Law have directed.

While the Sixth Amendment requires trial by jury in federal criminal cases, and 

that jury’s composition must be a representative cross-section of the community, 

courts-martial have never been considered subject to the jury-trial demands of the 

Constitution. United States v. McClain, 22 M.J. 124, 128 (C.M.A.1986); see also 

O’Callahan, 395 U.S. at 261–62. Our superior court recently re-emphasized that the 

Sixth Amendment right to a jury trial does not apply to courts-martial. United States v. 

Easton, 71 M.J. 168, 175 (C.A.A.F. 2012) (citing Ex parte Quirin, 317 U.S. 1, 39 (1942);

Wiesen, 57 M.J. 48.

We find the authorities cited by appellant to buttress her claim of a due process 

violation, Ballew and Burch, do not limit the power of Congress to create rules for 
6 ACM 38554

courts-martial pursuant to Article I, Section 8, of the Constitution. Consistent with our 

superior court’s precedent, courts-martial are not subject to the same jury requirements as 

other criminal trials.

Voir Dire

Trial counsel sought to ask:

[T]he military judge will instruct you that the accused may be 

convicted of using marijuana based solely upon the positive 

urinalysis and that you may infer knowing and wrongful drug 

use simply by the presence of marijuana or its metabolites in 

her body; that’s called a ‘permissive inference.’ Does 

everyone understand a positive urinalysis alone may be 

considered as proof beyond a reasonable doubt that an 

accused is guilty of the charged offense?

Trial defense counsel objected to this question, arguing that it was intended to elicit a 

promise from court members that they would commit to drawing the permissive 

inference. Conversely, trial counsel said that the question was intended to determine 

whether the members would follow the military judge’s anticipated instruction on 

permissive inferences. The military judge overruled the objection and permitted the 

question.

A military judge is given wide discretion in determining the scope of voir dire. 

United States v. White, 36 M.J. 284, 287 (C.M.A. 1993). “The nature and scope of the 

examination of members is within the discretion of the military judge.” Rule for 

Courts-Martial 912(d), Discussion. As our superior court has stated, when we review 

issues involving a military judge’s voir dire determinations, “we ‘should reverse only 

when a clear abuse of discretion, prejudicial to a defendant, is shown.’” United States v. 

Loving, 41 M.J. 213, 257 (C.A.A.F. 1994) (quoting United States v. Smith, 27 M.J. 25, 28 

(C.M.A. 1988)).

The military judge later properly instructed the members:

Use of a controlled substance may be inferred to be wrongful 

in the absence of evidence to the contrary. However, the 

drawing of this inference is not required. Knowledge by the 

accused of the presence of the substance and knowledge of its 

contraband nature may be inferred from the surrounding 

circumstances. You may infer from the presence of THC in 

the accused’s urine that the accused knew she used marijuana. 

However, the drawing of any inference is not required.
7 ACM 38554

We see nothing about trial counsel’s question that improperly stated the law or that was 

designed to seek a commitment from the members that they would draw the permissive 

inference. Moreover, because the members are presumed to follow the military judge’s 

instructions, United States v. Jenkins, 54 M.J. 12, 20 (C.A.A.F. 2000), and there is no 

evidence that they did not, even assuming arguendo that the question was confusing, the 

military judge’s later legally-correct instruction cured any possible uncertainty.

Factual and Legal Sufficiency

The appellant challenges the legal and factual sufficiency of the evidence. We 

review issues of legal and factual sufficiency de novo. See United States v. Washington, 

57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency of the evidence is 

‘whether, considering the evidence in the light most favorable to the prosecution, a 

reasonable factfinder could have found all the essential elements beyond a reasonable 

doubt.’” United States 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)). “Proof beyond a reasonable 

doubt . . . does not mean that the evidence must be free of conflict.” United States v. 

Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986).

The test for factual sufficiency is “whether, after weighing the evidence in the 

record of trial and making allowances for not having personally observed the witnesses, 

[we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” Turner, 

25 M.J. at 325. In conducting this unique appellate role, we take “a fresh, impartial look 

at the evidence,” applying “neither a presumption of innocence nor a presumption of 

guilt” to “make [our] own independent determination as to whether the evidence 

constitutes proof of each required element beyond a reasonable doubt.” Washington, 

57 M.J. at 399.

The attack is largely two-fold: first, that irregularities in the testing process 

undermine confidence that the sample tested was the appellant’s; and second, that the 

appellant’s alternate theory concerning how she may have ingested marijuana precludes a 

finding of guilt beyond a reasonable doubt. We are not persuaded by either argument.

Local laboratory personnel assigned a specimen number to the appellant’s urine 

when it was provided. When the report of the positive test result was received, base 

personnel noted that the specimen number on the positive report did not match the 

specimen number in their records for the appellant’s sample. The government offered the 

testimony of the laboratory certifying official (LCO). The LCO testified that because the 

appellant’s sample arrived accompanied by a nonbarcoded (and machine-scannable) 

DD Form 2624 (Specimen Custody Document), the specimen data had to be entered by 

laboratory personnel by hand. This process required that the laboratory personnel key in 

and verify the test subject’s Social Security number and other identifying information. 
8 ACM 38554

The LCO testified that the laboratory software auto-generates a specimen number when 

data is keyed by hand and that the person entering the data is required to adjust the 

auto-generated specimen number to reflect the actual specimen number on the sample. In 

this case, she testified, the person who did the data entry failed to enter the appropriate 

specimen number. The LCO completed her testimony on this point by confirming that 

the sample tested was, in fact, the appellant’s based on the Social Security number 

affixed to the specimen bottle.

The appellant’s 27-year-old son testified on her behalf. A chef by trade and 

marijuana user by admission with a criminal conviction, he testified that while he was 

visiting the appellant’s home and while she was out of the area, he experimented with 

using marijuana to make a tincture with which to infuse desserts. He made truffles and 

caramels, both laced and not laced with the marijuana-based tincture, and mistakenly left 

behind some of the laced truffles when he left the appellant’s home in Alaska to return to 

Virginia. The appellant herself then testified, confirming that she found in her 

refrigerator and consumed truffles immediately prior to being ordered to provide a urine 

specimen, although she did not know that her son had laced them with marijuana until 

several months after her positive urinalysis result.

We have reviewed the record of trial, paying particular attention to the evidence 

and reasonable inferences that can be drawn therefrom, including all of the matters raised 

by the appellant. In viewing the evidence in the light most favorable to the government, 

we conclude that a rational factfinder could have found beyond a reasonable doubt that 

the appellant used marijuana. Having reviewed the entire record and making allowances 

for not personally observing the witnesses, we ourselves are convinced of the appellant’s 

guilt beyond a reasonable doubt.

Conclusion

The approved findings and the sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) 

and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and 

the sentence are AFFIRMED.

FOR THE COURT

 LEAH M. CALAHAN

Deputy Clerk of the Court