UNITED STATES v. SPYKERMAN (2021)

PUBLISHED OPINION OF THE COURT

Appellant was convicted, pursuant to his pleas, of one specification each of transporting and conspiring to transport aliens for financial gain, in violation of Article 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 934. Appellant, along with others, was apprehended at a mass arrest conducted during a battalion formation.

Appellant asserts eight assignments of error [AOEs]: (1) the Government failed in its duty to disclose material and favorable evidence to the Defense in violation of Brady v. Maryland ² when it did not provide the Defense with video taken of the mass arrest or correspondence and other documents concerning planning of the mass arrest; (2) Appellant was subjected to illegal pretrial punishment in violation of Article 13, UCMJ, when he was publicly arrested and humiliated in front of his entire battalion during the mass arrest; (3) Appellant's court-martial was tainted by actual and apparent unlawful command influence [UCI] stemming from the mass arrest; (4) the court-martial lacked jurisdiction where it was improperly convened because the convening authority was a type three accuser; (5) Appellant's pleas were improvident because he negotiated his plea agreement with a convening authority later deemed to have been involved in planning the mass arrest, constituting UCI, thus making his plea agreement invalid; (6) the post-trial action was invalid because the post-trial convening authority relied upon advice from the staff judge advocate [SJA] who provided legal advice relating to the mass arrest, which constituted UCI, thus disqualifying the SJA from providing post-trial advice; (7) Appellant's convictions and sentence are inappropriate and disparate considering all of the facts and circumstances, including other closely related cases, and merit this Court using its broad powers under Article 66(c), UCMJ;³ and (8) Appellant was denied effective assistance of counsel when his trial defense counsel [TDC] did not request discovery, failed to investigate the facts and circumstances of the mass arrest, did not raise motions flowing logically from the mass arrest, did not seek necessary continuances in light of newly discovered evidence, and did not request disqualification of the SJA for post-trial matters, which deficiencies prejudiced Appellant.⁴ We find no prejudicial error and affirm.

I. Background

A. Appellant is Apprehended during a Public Mass Arrest in Front of His Entire Battalion

After the United States Customs and Border Patrol [USCBP] arrested two Marines in early July 2019, a follow-on Naval Criminal Investigative Service [NCIS] investigation uncovered that a number of Marines had been paid to transport immigrants who had illegally crossed into California from Mexico. In response to the investigation's discoveries, the leadership of 1st Battalion, 5th Marine Regiment [1/5], orchestrated a mass arrest of the implicated Marines during a battalion formation held on the morning of 25 July 2019.

In the days preceding the arrest, multiple meetings and conversations were held to coordinate the event. On 18 July, the battalion commander, Lieutenant Colonel [LtCol] Oscar,⁵ and the battalion sergeant major, Sergeant Major [SgtMaj] Delta, met with NCIS Special Agent [SA] Tango. According to SA Tango's case activity records, on 19 July, NCIS “came up [with the] op plan for 25JUL19.”⁶ LtCol Oscar and SgtMaj Delta met again with SA Tango on 22 July, this time including LtCol Hotel, the 1st Marine Division SJA.⁷ On 22 or 23 July, LtCol Oscar verbally informed his immediate superior, Colonel [Col] Whiskey, the commanding officer of 5th Marine Regiment, of the plan to execute the arrest, and sent him an email on 24 July, which detailed the planned sequence of events.⁸ Two days later, Col Whiskey e-mailed the 1st Marine Division commanding general, informing him that the battalion commander, in consultation with the SJA, “authorized the detainment of persons of interest and the search and seizure of barracks rooms, privately owned vehicles, electronic devices, and other property.”⁹

Aware of the potential newsworthiness of the mass arrest, Communication Strategy and Operations [COMSTRAT], which handled public affairs for the division, suggested videotaping the event ¹⁰ in order to prevent conflicting or skewed accounts of the arrest from surfacing.¹¹ Both the battalion commander and the SJA supported the proposal, and the SJA coordinated the filming with the COMSTRAT personnel.¹²

On the morning of 25 July 2019, about 800 Marines—nearly the entire battalion—were called to formation. Sixteen Marines were called one by one to stand at attention at the front of the formation. Once they had all stepped forward, SgtMaj Delta, who appeared to be holding a red folder normally used for the presentation of awards, called out “NCIS, [a]rrest these Marines.”¹³ About 30 to 40 agents from USCBP, NCIS, and Marine Corps Criminal Investigation Division came forward to apprehend, search, and lead the men away in handcuffs to police vehicles. Appellant was one of those 16 Marines. Another eight Marines, who were suspected of committing unrelated drug offenses, were then called to the front and subsequently brought to the Camp Pendleton brig.

After those Marines were taken away, LtCol Oscar and SgtMaj Delta each addressed the battalion for several minutes. Although it is impossible to hear the full remarks on the video, one can make out LtCol Oscar speaking about the apprehended Marines, saying that they were “eroding our readiness,” “jeopardizing our success in battle,” “endangering all of our lives,” “are a distraction to leadership and readiness,” and that their behavior was “contrary to our core values.”¹⁴ News media quickly picked up the story, and several local and national outlets reported on the public mass arrest. Addressing inquiries, a COMSTRAT spokesman declared that “[the public mass arrest] was an eye-opening thing for the rest of the battalion. It had a shock and awe factor. The command wanted to send a message to make clear this type of behavior is not tolerated.”¹⁵

About three months later, on 31 October 2019, the Government provided the video of the public mass arrest in discovery to defense counsel for another Marine in a companion case.

B. Guilty Plea, Sentencing, and Post-Trial Article 39(a) Session

On 6 November 2019, Appellant pleaded guilty to two specifications of violation of Article 134, UCMJ. Appellant waived the presence of his civilian defense counsel [CDC], who had participated in the negotiation of his plea agreement, from his guilty plea and sentencing hearing. Rather, Appellant was represented at that hearing by two Navy detailed defense counsel, LT Sierra and LT Mitchell. Although the video of the mass arrest had been circulating among some of the other defense counsel for other co-accused for several days beforehand, Appellant and his counsel did not see it until the day of his plea. None of Appellant's counsel had submitted a formal discovery request in this case.

While the court was in recess for lunch, after the military judge had accepted Appellant's guilty pleas but before the start of the presentencing hearing, TDC received a copy of the video from their commanding officer (Commanding Officer, Defense Service Office West) who had, in turn, received it from a civilian defense counsel in one of the companion cases. Although the recess was initially ordered to be an hour long, it was extended by the military judge and lasted over an hour and 45 minutes so that TDC and Appellant could have an opportunity to review and discuss the video.

When the proceedings reconvened, the military judge asked TDC if the Defense wanted to make any motions related to the video. TDC replied in the negative, but said that they would instead use the video as evidence in extenuation and mitigation in their sentencing case, which they subsequently did. This decision was made within the context of Appellant's plea agreement, which contained a provision that he agreed to waive all motions that could be waived. After announcing Appellant's sentence, the military judge stated he adjudged a lower sentence than he otherwise would have based on Appellant's 104 days in pretrial confinement and the Defense's extenuation and mitigation evidence.

One week after Appellant's trial, on 13 November, the military judge sua sponte called a post-trial Article 39(a), UCMJ, hearing to further discuss possible issues of UCI and Article 13 violations, in light of the video.¹⁶ The military judge wanted to review Appellant's and TDC's decision to waive the issues, and to that end, conducted a lengthy colloquy with both TDC and Appellant.

At the end of the hearing, the military judge declared that “as a result of what appears to be UCI in this case”¹⁷ he would recommend that the adjudged BCD be suspended, and noted that his decision was due to what the video appeared to demonstrate. The military judge also ruled that the convening authority for post-trial action would no longer be Col Whiskey—LtCol Oscar's immediate superior—but the commanding general of the 1st Marine Division, Major General [MajGen] Charlie. The parties did not discuss the disqualification of the SJA from the post-trial review. The military judge further explicitly stated on the record that he found:

beyond a reasonable doubt that if Article 13 or unlawful command influence issues are present, that [Appellant] has knowingly and consciously waived those issues in electing not to litigate those motions, and has done so voluntarily, without any pressure.18

Appellant did not submit any matters for the convening authority to review. The new convening authority, after having been advised by LtCol Hotel, followed the military judge's recommendation and suspended the BCD for six months, after which it was remitted.

C. CDC and TDC Declarations in Response to Appellant's Allegations of Ineffective Assistance of Counsel

After reviewing the allegations of ineffective assistance of counsel [IAC] and the Government's response, and after examining the record, we found that the standards established by United States v. Melson ¹⁹ for the Court-ordered production of affidavits or declarations had been met. Accordingly, we ordered Appellant's CDC and two detailed TDC to submit declarations that addressed Appellant's allegations.

1. Declaration of Appellant's CDC [Mr. Smith]

In his sworn declaration, Appellant's CDC, Mr. Smith, affirmed that his representation of Appellant began around 30 July 2019. The scope of his representation was limited to the pretrial stages of Appellant's case. Mr. Smith was hired to represent Appellant at the Initial Review Officer [IRO] hearing, to ideally facilitate a speedy trial, and to ensure that the Government knew that Appellant retained counsel.

Mr. Smith did not submit a discovery request during the course of his representation of Appellant, but was generally aware of the circumstances surrounding the public mass arrest at which Appellant was apprehended. According to Mr. Smith, throughout the period of his representation, Appellant consistently prioritized being released from confinement and expeditiously resolving the case. Mr. Smith remembers telling Appellant that the arrest potentially constituted UCI, but that it could possibly be cured by the Government if they took corrective action. However, “Appellant was focused on expediting his release as quickly as possible.”²⁰ Appellant's girlfriend was pregnant and he wished to be with her. Mr. Smith and Appellant also discussed Appellant's desire to avoid federal prosecution like two other Marines who were being prosecuted by the United States Attorney's Office for the Southern District of California for similar offenses. Mr. Smith therefore advised Appellant on various pretrial resolutions that would conclude his case more quickly, such as separation in lieu of trial, resolving the case at a lower forum with an administrative separation board waiver, and a guilty plea at court-martial.

Appellant's IRO hearing occurred on 2 August 2019. Initially, Mr. Smith took the opportunity to question NCIS agents to establish that there was no gang or organized crime connection to the human trafficking allegations. After accomplishing that objective, Appellant waived the remainder of the hearing in order to deliberately serve his confinement before trial, thereby guaranteeing he would receive pay while in confinement and increasing the likelihood that he would be able to be present with his girlfriend for the birth of their child.

Shortly after the IRO hearing, Mr. Smith began plea discussions on behalf of Appellant, which lasted throughout September. The Government preferred charges on 13 September 2019, with the intention of proceeding to an Article 32, UCMJ, pretrial hearing. However, Mr. Smith continued to negotiate for a resolution. His negotiations on behalf of Appellant ultimately resulted in the time-served plea agreement under which Appellant pleaded guilty and was sentenced at special court-martial on 6 November 2019.

Once the deal was reached, Mr. Smith ceased his representation of Appellant. As he was not retained to represent Appellant at trial, Mr. Smith did not attend or otherwise participate in the guilty plea and sentencing hearing. Mr. Smith did not become aware of the video of the arrest until sometime after Appellant's guilty plea and sentencing hearing.

2. Declarations of Appellant's TDC [LT Sierra & LT Mitchell]

LT Sierra was detailed to Appellant's case on 7 August 2019, and LT Mitchell was detailed on 22 October 2019, approximately two weeks before his guilty plea and sentencing hearing. LT Sierra discussed with Appellant the unusual circumstances surrounding his apprehension during the public mass arrest, and the potential motions that could be filed based on those circumstances, if he chose to contest his charges. However, Appellant did not want to risk the possibility of additional confinement. Instead, he wanted the guarantees he could receive from a plea agreement, namely a cap on his confinement.

At the time of Appellant's plea and sentencing hearing, other companion cases were awaiting Article 32, UCMJ, preliminary hearings and likely headed to general courts-martial. Although LT Sierra and LT Mitchell did not submit formal discovery requests, LT Sierra informally requested discovery prior to LT Mitchell being detailed to the case, and both TDC stated that they received over 1,800 pages of discovery from the Government prior to Appellant's guilty plea and sentencing hearing. On 23 October 2019, LT Sierra and LT Mitchell confirmed with the Government that they had received all of the discovery in the case.

LT Sierra agreed that Mr. Smith took the lead on negotiating a plea agreement which would ensure Appellant's release from confinement on the expected date of trial, otherwise known as a “time-served” agreement, at a special court-martial. Based on a delay in the date of the guilty plea and sentencing hearing, LT Sierra petitioned the convening authority to uphold his end of the agreement and release Appellant from pretrial confinement, as the maximum period of confinement under the agreement had already been served. The convening authority granted this request, and Appellant was released from confinement prior to the date of his guilty plea and sentencing.

On the day of the trial, during a recess after the providence inquiry but before the sentencing hearing, LT Sierra and LT Mitchell were informed by their commanding officer that he had received a video file of the public mass arrest from a civilian defense counsel representing a different accused in a companion case. Upon learning of the existence of the video, LT Sierra and LT Mitchell asked the trial counsel [TC] if other similar recordings existed. The TC told them that he believed that this was the only recording of the arrest and said he did not even know of its existence until that morning. The TC also explained that he was informed the video was obtained from the base public affairs office, which is not a place from which the prosecution office typically requested discovery. After reviewing the video themselves, LT Sierra and LT Mitchell watched it again with Appellant and discussed its potential repercussions. According to both LT Sierra and LT Mitchell, they told Appellant there were several courses of action that they could take, such as requesting a continuance, bringing motions for UCI and illegal pretrial punishment, renegotiating the plea agreement or contesting the case at trial. They explained the potential results of these actions, including the possibility that the charges would be dismissed. LT Sierra and LT Mitchell also readvised Appellant about the negative consequences of a federal conviction and punitive discharge.

Appellant asked if taking any of these actions would risk his return to pretrial confinement. LT Sierra and LT Mitchell explained that they could not make any guarantees because they did not know how the convening authority would react. They told him that if the convening authority perceived Appellant to be voiding the plea agreement, it was possible he would order Appellant back into pretrial confinement. Although Appellant acknowledged both the detrimental effects of a conviction and the possible benefits of the aforementioned potential courses of action, he did not want to take the risk. “Appellant was certain that he wanted his case resolved that day, and adamant that [they] not take any chance of him being returned to pre-trial confinement or delay his ultimate separation from the Marines.”²¹ The most Appellant felt comfortable doing was asking for a brief continuance so that LT Sierra and LT Mitchell could copy the video onto a disc for use as extenuation and mitigation evidence in sentencing.

After Appellant made his decision to continue with the plea agreement without raising motions or taking other potential actions, LT Sierra and LT Mitchell thought it prudent to memorialize his decision in writing. LT Mitchell subsequently handwrote the following memorandum on notebook paper:

New evidence was discovered on 6 November 2019 at about 1200, after [the] guilty-plea was accepted, but before sentencing. The evidence included a recorded video of [Appellant] and other Marines being arrested in front of the entire battalion (by NCIS). It appeared to be orchestrated by the convening authority. This evidence may have materially altered negotiations, and may have resulted in a contested hearing. Defense counsel advised on the matter of UCI and illegal pre-trial punishment. [Appellant] understood the implications of the newly discovered evidence. [Appellant] did not want to back-out of the [plea agreement], and instead preferred to offer the new evidence during sentencing, to request equitable relief in asking the military judge to not award a BCD.22

Below the memorandum, LT Sierra and LT Mitchell each printed and signed their name and wrote the date. Underneath their signatures, Appellant wrote “I understand and do not want to back out of the [plea agreement],” followed by his printed name, signature and date.

Shortly after the guilty plea and sentencing hearing, LT Mitchell executed a permanent change of station and ceased her representation of Appellant with his consent. However, LT Sierra continued to represent him, including at the post-trial Article 39(a), UCMJ, hearing on 13 November 2019. During the week between the adjournment of trial and the post-trial Article 39(a) session, LT Sierra again discussed the UCI and illegal pretrial punishment issues with Appellant and asked if his position had changed in the time since trial. She also informed Appellant of her intention to request the military judge to recommend suspension of the adjudged BCD. Appellant confirmed to LT Sierra that he had not changed his mind and was pleased both that his case was almost resolved and that he was out of confinement.

In answer to why LT Sierra did not seek an extended recess or continuance after Col Whiskey's disqualification from taking post-trial action, she stated that she believed the military judge's remedy was sufficient given the circumstances. Appellant still wished for a quick resolution of his case and there was no evidence or reason to believe that the new convening authority, MajGen Charlie, would be conflicted or unfair in his treatment of Appellant. If anything, LT Sierra believed it would play to Appellant's benefit to have MajGen Charlie serve as the new convening authority, considering the recent influx of UCI motions from companion cases and the negative media attention surfacing as a result of the video. Similarly, she did not ask the military judge to disqualify the SJA because she believed that with the new, heightened attention on Appellant's and other accused Marines’ cases, there was no reason to believe the SJA would perform his duties in anything but a “fair and consistent manner.”²³

D. Appellant's Declaration in Response to CDC and TDC Declarations

Appellant filed a sworn declaration in response to the declarations by his CDC and two TDC, which addressed Appellant's allegations of IAC.

In his declaration, Appellant stated that at the time he was confined in pretrial confinement, his girlfriend was pregnant with their child and that the baby was due in the middle of November 2019. Appellant also confirmed that it was his goal to be released from confinement so that he could support her and be there when the baby was born. Appellant stated that he entered into the plea agreement to ensure that he would be released as soon as possible from confinement. The agreement was to be for time served, which was to be a total of 98 days confinement with trial on 31 October 2019. However, Appellant's guilty plea and sentencing hearing was delayed, and he was released on 5 November 2019, the day before his trial.

Appellant asserted that during his trial, his TDC, LT Sierra and LT Mitchell, received a video that had been taken of the battalion formation at which he was apprehended along with many others. Appellant stated that his TDC talked to him about filing a motion because of the video, and they explained to him that it was possible that the charges against him could be dismissed, but that he could also face trial by general court-martial.

Appellant asserted that he asked his TDC if he could be returned to pretrial confinement. He stated that they informed him that if he filed motions or did something that would not be in line with the plea agreement, the convening authority could withdraw from the plea agreement. Appellant said he understood this to mean that withdrawing from the plea agreement could be the sole basis for putting him back into pretrial confinement for an indeterminate amount of time.

Appellant averred that his TDC did not say that he could only be returned to confinement if new evidence about his case was discovered or if he committed further misconduct that would warrant pretrial confinement. He also stated that he had very little time to make his decision on these issues. He stated that based on what his TDC advised him, he believed that if he did anything to either withdraw from the plea agreement or lead the convening authority to withdraw from the agreement, he would be placed back into pretrial confinement. He asserted that for this reason, he chose to allow his guilty pleas to stand and continue with his plea agreement. Appellant asserted that had he been told that he would not have been returned to confinement, absent specific circumstances, he would have chosen to withdraw his pleas of guilty and proceeded to a contested trial.

Appellant's daughter was born on 18 November 2019.

II. Discussion

A. Non-Disclosure of the Mass Arrest Video

1. Standard of review and the law

In cases where the defense either did not make a discovery request or made only a general request for discovery, we apply the harmless error standard.²⁴ Whether an appellant has waived an issue is a question of law that we review de novo.²⁵

In Brady v. Maryland, the Supreme Court articulated that due process requires prosecutors to “avoid ․ an unfair trial” by making available “upon request” evidence “favorable to an accused ․ where the evidence is material either to guilt or to punishment.”²⁶ Subsequently, the Supreme Court clarified that the requirement exists whether there is a general discovery request or no request at all.²⁷ Brady is implemented in the military justice system through Rule for Courts-Martial [R.C.M.] 701(a)(6).²⁸ This rule provides:

Evidence favorable to the defense. Trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence known to trial counsel which reasonably tends to—

(A) Negate the guilt of the accused of an offense charged;

(B) Reduce the degree of guilt of the accused of an offense charged;

(C) Reduce the punishment; or

(D) Adversely affect the credibility of any prosecution witness or evidence.

“[W]aiver is the intentional relinquishment or abandonment of a known right.”²⁹ When an appellant “intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.”³⁰ A waiver leaves “no error to correct on appeal.”³¹ A “waive all waivable motions” clause constitutes an affirmative waiver.³² “A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution.”³³

2. Whether the mass arrest video is Brady material on the issue of guilt is moot because Appellant waived its nondisclosure by the Government

It is axiomatic to say that UCI is the “mortal enemy of military justice.”³⁴ Trial counsel should tread extremely carefully when in possession of evidence of potential UCI. Here, it is clear—and the military judge explicitly stated this—that the evidence of potential UCI reduced Appellant's punishment. Although UCI can, under certain circumstances, result in dismissal of charges with prejudice, we are not certain that the evidence at issue would have done so in this case. But we need not decide that to resolve this matter. Assuming without deciding, that the nondisclosure of the mass arrest video was a Brady violation and also violated R.C.M. 701(a)(6)(A), we find that Appellant waived the issue on two separate occasions.

On the day of his guilty plea, Appellant's TDC received a copy of the video shortly before his sentencing hearing. During the sentencing hearing, the judge explicitly asked the Defense if it had any motions to raise because of the video. In reply, TDC declined and said that they simply wanted to use the video as evidence in extenuation and mitigation. A week later, the military judge sua sponte called a post-trial Article 39(a) session and, following a lengthy colloquy, Appellant himself confirmed in open court that he still wanted to plead guilty and receive the benefit of his plea agreement. Under these circumstances, we find that Appellant made a tactical decision and explicitly waived the issue of nondisclosure of the video as it pertains to his pleas of guilty and the military judge's acceptance of them.³⁵

3. The Government's nondisclosure of the mass arrest video violated R.C.M. 701(a)(6)(C), but this error was harmless because Appellant effectively used that evidence in sentencing

With regard to sentencing, we agree with Appellant that the Government violated R.C.M. 701(a)(6)(C), by its failure to provide him a copy of the video because it did reasonably tend to reduce the punishment in his case. We are confident in making this determination because immediately after announcing the sentence, the military judge stated that he adjudged a lower sentence based in part on the Defense case in extenuation and mitigation, in which the video was the most powerful evidence. We also find that the Government, as a unified entity, was aware of the video's existence because the same prosecution office provided it in discovery to defense counsel in a related case almost a week before Appellant's guilty plea and sentencing proceeding. In the absence of a formal discovery request we apply the harmless error test. In doing so, we note that, regardless of the Government's failure to disclose it to him, Appellant was able to effectively present the video as sentencing evidence, to include the military judge making a recommendation for the suspension of the adjudged BCD, which the convening authority agreed to follow. Thus, we find the Government's violation of R.C.M. 701(a)(6)(C) constituted harmless error.³⁶

B. Article 13, UCMJ

1. Standard of review and the law

Whether an appellant has been subject to illegal pretrial confinement in violation of Article 13, UCMJ is a mixed question of law and fact.³⁷ We review de novo whether an appellant is entitled to credit for a violation of Article 13.³⁸ Whether an appellant has waived an issue is a question of law we review de novo.³⁹ “[W]here a military judge is faced with a pretrial agreement that contains an Article 13 waiver, the judge should inquire into the circumstances of the pretrial confinement and the voluntariness of the waiver, and ensure that the accused understands the remedy to which he would be entitled.”⁴⁰

Article 13 provides,

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.

Article 13 prohibits two things: illegal pretrial punishment, and illegal pretrial confinement.⁴¹ If an accused or appellant can demonstrate a violation of Article 13, then he or she is entitled to sentence relief.⁴²

2. Appellant expressly waived Article 13 issues arising from him being publicly apprehended as part of a mass arrest in front of his entire battalion

We find that Appellant repeatedly waived Article 13 issues and claims for sentence relief arising from the circumstances of his apprehension during a public mass arrest in front of his entire battalion.

Prior to the entrance of pleas, the military judge asked TDC if Appellant had any motions to grant any relief, and TDC replied in the negative. Soon afterwards, the military judge specifically inquired if Appellant intended to bring a motion under Article 13. TDC again replied in the negative and stated, “We've waived all waivable motions.”⁴³ This assertion correctly summarized a term in Appellant's plea agreement.⁴⁴

Immediately after the lunch break, which preceded Appellant's sentencing hearing and during which TDC came into possession of the video of public mass arrest, the military judge asked TDC if she had any motions arising from the video. TDC replied in the negative, and said that the Defense would, instead, present the video as evidence in sentencing.⁴⁵

During sentencing argument, TDC referred to how Appellant was “apprehended in front of his platoon with 30 armed, vested agents swarming in to arrest him on video.” The military judge immediately interrupted TDC and asked, “You're not making an Article 13, illegal pretrial punishment or unlawful command influence motion?” TDC responded, “I am not, Your Honor. I am asking for your consideration to weigh this evidence and [give] consideration on ․ other punishment options, Your Honor.”⁴⁶

The military judge sentenced Appellant in accordance with his plea agreement. Because the maximum confinement that could be adjudged under the agreement was 98 days, and because Appellant had already served 104 days of pretrial confinement, it constituted a time-served deal. The military judge explained the sentence on the record and the impact of the Defense's sentencing case upon it as follows:

For the record, I'd note that the Court considered additional punishment in this case, thought that would be appropriate; however, based on the 104 days of pretrial confinement, the Court factored that in awarding a lesser punishment, as well as the evidence presented by the Defense in extenuation and mitigation.47

During the post-trial Article 39(a) session held one week after Appellant's sentencing hearing, the military judge explicitly asked TDC if the Defense was raising Article 13 and UCI motions, and TDC replied in the negative. When the military judge asked if that decision was based on the “waive all waivable motions” provision of Appellant's plea agreement, TDC explained,

[W]e waived all waivable motions in the plea agreement, but at the time we found the video, we did discuss whether [Appellant] wanted to back out and move forward with [a] contested [trial] based on the potential motions we found. But, Your Honor, as you mentioned, we believe the plea agreement was very favorable and he took that into consideration when he decided he did not want us to submit those motions and just continue on asking you to do exactly what you said, which was to consider that in extenuation and mitigation instead.48

Next, the military judge engaged Appellant directly in a colloquy during which he confirmed Appellant understood the following: that by waiving these motions he was precluding an appellate court from having the opportunity to determine if he was entitled to any relief, that his defense counsel had explained what potential motions could have been raised, and the consequences of giving up those motions. The judge also confirmed with Appellant that no one had forced him to give up these motions, and confirmed with TDC that the decision to give up these motions originated with the Defense.

Later, the military judge specifically addressed at length with Appellant and TDC the waiver of a potential Article 13 motion as follows:

MJ: And you understand that this could have been [an] illegal pretrial punishment [motion], the way you were apprehended?

Appellant: Yes, sir.

MJ: Do you understand the law requires that I reward you day-for-day credit for any unlawfully imposed pretrial confinement?

Appellant: Yes, sir.

MJ: You also understand that if you convince me that, more likely than not, you suffered illegal pretrial punishment, you would be entitled to additional credit against any sentence you may receive in this case?

Appellant: Yes, sir.

MJ: Do you understand that by waiving this motion, you're giving up that right for this Court or an appellate court to consider these issues on appeal?

Appellant: Yes, sir.

MJ: And defense counsel, you understand that you asked me to consider it in extenuation and mitigation, which I did, and I articulated that on the record at our previous session?

DC: Yes, Your Honor.

Obviously, since it was for a time-served deal, we weren't interested in getting day-for-day credit.

MJ: But I will state for the record, I gave the accused additional credit beyond the sentence that I would have imposed, would have included additional punishment that I did not give, as a result of watching that video and considering it in extenuation and mitigation.

Do you understand by not litigating this issue, [Appellant], you will never know what credit for illegal pretrial punishment, if you would have received any, that you would have been entitled to, and that beyond me considering it in extenuation and mitigation, you'll receive no credit for illegal pretrial punishment you may have received?

Appellant: Yes, sir.

MJ: Did you discuss these issues with your defense counsel fully?

Appellant: Yes, sir.

MJ: Did anyone force you to give up your right to litigate this Article 13, pretrial punishment [motion]?

Appellant: No, sir.

MJ: No?

Appellant: No, sir.

MJ: Who originated this?

Was that originated from the Defense?

DC: Yes, it was, Your Honor.

MJ: Do you still want to continue with your guilty plea and your plea agreement at this time, [Appellant]?

Appellant: Yes, sir.

MJ: Do you have any questions about that?

Appellant: No, sir.49

Based on the foregoing, and particularly, the military judge's detailed and thorough colloquy with Appellant and TDC during the post-trial Article 39(a) session, we confidently conclude that Appellant waived all Article 13 issues in his case and any claims for sentence relief that arose from the facts and circumstances surrounding his apprehension as part of a public mass arrest in front of his entire battalion.⁵⁰

We also considered whether we should exercise our authority to consider Appellant's Article 13 claim under Article 66(c), UCMJ, despite his waiver.⁵¹ Given the facts and circumstances presented here we decline to do so,⁵² particularly because Appellant was able to effectively use the video of the public mass arrest as evidence in extenuation and mitigation.

C. Unlawful Command Influence

1. Standard of review and the law

Article 37(a), UCMJ, prohibits UCI. There are two types of UCI that can arise in the military justice system: actual UCI and apparent UCI.⁵³ Actual UCI occurs when there is an improper manipulation of the criminal justice process which negatively affects the fair handling and / or disposition of a case.⁵⁴ Apparent UCI occurs when, “an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding.”⁵⁵ The prohibition against UCI includes attempts to interfere with access to witnesses.⁵⁶

The defense has the initial burden of raising the issue of UCI.⁵⁷ To raise the issue, the defense must (1) show facts which, if true, constitute UCI; (2) show that the proceedings were unfair; and (3) show that UCI was the cause of the unfairness.⁵⁸

The threshold for raising the issue at trial is low, but is more than mere allegation or speculation.⁵⁹ The evidentiary standard is “some evidence.”⁶⁰ Thus, at trial, “the accused must show facts which, if true, constitute [UCI], and that the alleged [UCI] has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings.”⁶¹

“Once the issue is raised at the trial level, the burden shifts to the Government, which may either show that there was no UCI or show that the UCI will not affect the proceedings.”⁶² The burden of disproving the existence of UCI or proving that it did not affect the proceeding does not shift until the defense meets the burden of production.⁶³ If the defense meets that burden, then UCI is raised at the trial level, and consequentially, a presumption of prejudice is created.⁶⁴ To affirm in such a situation, a reviewing court must be convinced beyond a reasonable doubt that the UCI had no prejudicial effect on the court-martial.⁶⁵ “[P]rejudice is not presumed until the defense produces evidence of proximate causation between the acts constituting [UCI] and the outcome of the court-martial.”⁶⁶

With regard to the specific issue of apparent UCI, once an accused meets the “some evidence” threshold, the burden shifts to the government to prove beyond a reasonable doubt that either a) the predicate facts proffered by the accused do not exist or b) that the facts as presented do not constitute unlawful command influence.⁶⁷ If the government is unable to meet that burden, then it must prove beyond a reasonable doubt that the UCI “did not place an intolerable strain upon the public's perception of the military justice system and that an objective, disinterested observer, would not harbor a significant doubt about the fairness of the proceeding.”⁶⁸ Unlike actual command influence, a meritorious claim of apparent UCI does not require prejudice to an accused.⁶⁹ Instead, the prejudice is what is done to the “public's perception of the military justice system as a whole.”⁷⁰ A significant factor in determining whether the UCI created an intolerable strain on the public's perception of the military justice system is whether the “appellant was not personally prejudiced by the [UCI], or that the prejudice caused by the [UCI] was later cured.”⁷¹

A military judge can intervene and protect a court-martial from the effects of UCI.⁷² The Court of Appeals for the Armed Forces [CAAF] has “looked with favor on military judges taking proactive, curative steps to remove the taint of [UCI] and ensure a fair trial.”⁷³ Our superior court has also articulated:

As a last resort, a military judge may consider dismissal when necessary to avoid prejudice against the accused. Dismissal of charges is appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings. However, we have noted that when an error can be rendered harmless, dismissal is not an appropriate remedy. Dismissal is a drastic remedy and courts must look to see whether alternative remedies are available.74

In cases involving UCI, military courts review a military judge's decision not to dismiss for abuse of discretion.⁷⁵ A reviewing court grants a military judge broad discretion to remove the taint of UCI, and will not reverse so long as the decision remains within that range.⁷⁶

“[W]aiver is the intentional relinquishment or abandonment of a known right.”⁷⁷ As a general matter, when an appellant “intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.”⁷⁸

With regard to UCI, military courts draw a distinction between the accusatorial process (i.e. the preferral, forwarding, and referral of charges) and the adjudicative stage (i.e. interference with witnesses, judges, members, and counsel.)⁷⁹ An accused forfeits claims of accusatory UCI if not raised at trial.⁸⁰ CAAF has declined to apply waiver of UCI arising in the adjudicative process by the mere “failure to object or call the matter to the military judge's attention.”⁸¹ However, an appellant may “initiate an affirmative and knowing waiver of an allegation of [UCI] ․ in order to secure the benefits of a favorable [plea] agreement.”⁸²

2. Appellant affirmatively declined in open court to raise UCI and waived the prophylactic remedy offered sua sponte by the military judge in a post-trial Article 39(a) session to eradicate the possible taint of UCI in his case

As discussed above, Appellant pleaded guilty consistent with a plea agreement that contained a “waive all waivable motions” provision. During his sentencing hearing, TDC expressly stated that the Defense declined to raise any motions, including UCI, arising from a video of the public mass arrest during which Appellant was apprehended. Rather, the Defense used the video as evidence in extenuation and mitigation on sentencing. As such, the Defense did not offer any evidence at trial that showed that the proceedings were unfair and that UCI was the cause of the unfairness.

It is somewhat concerning that TDC did not obtain the video until the lunch break between findings and sentencing, and then shortly thereafter, Appellant ostensibly waived the issue of UCI in his case. At first blush, the relatively brief period of time that the TDC had to review the video, consider the evidence, and discuss with Appellant what his options were, could call into question whether he made a knowing waiver of UCI issues in his case. However, the military judge sua sponte held a post-trial Article 39(a) session a week after Appellant's guilty plea and sentencing hearing to further discuss possible UCI and Article 13 violations in this case based on the video's contents. The military judge's colloquy with TDC and Appellant at this session conclusively alleviates any concerns whether Appellant's waiver of UCI at trial was made knowingly by him.

During that post-trial session, TDC asserted that Appellant waived these issues because Appellant had secured a favorable plea agreement. TDC also stated that Appellant waived UCI because his guilty plea at this special court-martial resulted in the attachment of jeopardy, which would prevent Appellant's potential prosecution in civilian federal court, where he could face much more severe punishment. TDC further confirmed on the record that after receiving the video, she and her co-counsel had discussed with Appellant the possibility of raising motions that arose from the video, but he told them that he did not want to raise those motions, primarily because he had obtained a very favorable plea agreement. After a lengthy colloquy on the record, Appellant himself told the military judge that he understood the consequences of waiving, among other things, a UCI motion, and confirmed that he still wished to plead guilty so that he would receive the benefit of his favorable plea agreement.

The military judge then addressed the sentencing portion of Appellant's trial. When he inquired whether there were any witnesses that the Defense would have called but for the circumstances of the mass arrest, TDC proffered the Defense believed that Appellant's gunnery sergeant may have been “more willing to cooperate” and potentially testify as a Defense witness in sentencing if Appellant's apprehension had not been conducted in such a public manner.⁸³ In response, without making a finding of UCI, the military judge offered to re-open the sentencing proceedings, to ensure that the gunnery sergeant was produced, and to order him both to testify truthfully and to disregard Appellant's public apprehension. However, Appellant personally declined on the record to re-open sentencing and receive the prophylactic remedy offered by the military judge. Instead, he informed the military judge that he wished to accept responsibility for his misconduct and receive the benefit of his plea agreement.

As a result of this post-trial session, we are convinced that Appellant affirmatively, knowingly, and consciously waived potential UCI issues and remedies in his case. The law allows an appellant to initiate an affirmative and knowing waiver of an allegation of UCI in order to secure the benefits of a favorable plea agreement.  ⁸⁴ It is true that TDC and Appellant were not aware of the existence of the video of the mass arrest at the time they signed the plea agreement. However, their subsequent assertions on the record make clear that, after they became aware of the video, Appellant ratified the plea agreement the Defense had previously negotiated, including its “waive all waivable motions” provision, for the primary purpose of obtaining the favorable benefits the agreement conferred upon him. Moreover, Appellant explicitly waived the remedy offered by the military judge to address possible UCI in the adjudicative phase of his court-martial. Specifically, he affirmatively declined the military judge's offer to re-open the sentencing proceedings, to ensure that his gunnery sergeant was produced, and to order him both to testify truthfully and to disregard Appellant's public apprehension in doing so. Thus, we find that with regard to the issue of raising UCI and seeking remedies to correct it,⁸⁵ Appellant intentionally relinquished a known right, as opposed to merely demonstrate “acquiescence and silence” to potential UCI in his case.⁸⁶

We also considered whether we should exercise our authority to consider Appellant's UCI claim under Article 66(c), UCMJ, despite his waiver.⁸⁷ Given the facts and circumstances presented here, we decline to do so. The exercise of our discretion on this issue is particularly guided by the facts that Appellant was able to effectively use the video of the public mass arrest as evidence in extenuation and mitigation and that the adjudged BCD was suspended by the convening authority, based on the recommendation of the military judge who was concerned that the video demonstrated possible UCI in Appellant's case.

3. Assuming arguendo Appellant did not waive UCI, we find he fails to meet his burden of production before this Court to raise actual UCI

Assuming arguendo that Appellant did not waive UCI at the trial level, we find that he fails to meet his burden of production before this Court to raise actual UCI.

Without a doubt, LtCol Oscar and SgtMaj Delta acted recklessly. Their actions may have injected the unfairness attendant with UCI into Appellant's case. If orchestrating a public mass arrest during which he was apprehended in front of his entire battalion and led away by NCIS agents was not enough, the battalion leadership made disparaging remarks to the rest of the assembled Marines—the most likely potential members or fact and sentencing witnesses—about the Marines who had just been apprehended. Indeed, the military judge in Appellant's case found UCI in cases of other Marines who had been apprehended under those circumstances.

However, despite the possibility that actual UCI may have occurred in Appellant's case, he did not meet his burden of production before this Court to raise the issue. Specifically, at the post-trial Article 39(a) session, TDC merely provided a proffer and no evidence that Appellant's gunnery sergeant may have been “more willing to cooperate” (i.e. provide a favorable character statement or serve as a character witness) had it not been for the circumstances of Appellant's apprehension and the remarks made shortly thereafter by LtCol Oscar and SgtMaj Delta. Additionally, although we granted Appellant's motion to attach numerous documents to the record of trial for consideration on this issue, none of these contains an assertion by a potential witness that he or she would have served as a character witness for Appellant or provided a favorable character statement on his behalf. Nor did Appellant offer any other evidence that showed with specificity who the Defense witness or witnesses were that would have testified on his behalf but for the circumstances of his apprehension and its aftermath. As such, Appellant did not meet his burden to produce some evidence that shows his proceedings were unfair and that unlawful command influence was the cause of the unfairness.⁸⁸ In the end, Appellant offers only speculation in his appellate pleadings on these critical points, and thus, any claim of actual UCI that survived his waiver at the trial level fails before this Court.⁸⁹

4. Assuming arguendo Appellant did not waive UCI, Appellant has presented some evidence of apparent UCI before this Court, but the circumstances of the public mass arrest and the comments of his battalion's leadership did not place an intolerable strain on the military justice system

We have concluded supra that Appellant waived UCI at trial. However, assuming arguendo that he did not do so, we find that Appellant has produced “some evidence” of apparent UCI, specifically the facts and circumstances of the public mass arrest to which he was subjected, and the comments of his battalion commander and battalion sergeant major after he and the other Marines were led away by law enforcement after being apprehended.⁹⁰ Therefore, we now analyze whether we are confident beyond a reasonable doubt that such influence “did not place an intolerable strain upon the public's perception of the military justice system and that an objective, disinterested observer, fully informed of all facts and circumstances would not harbor a significant doubt about the fairness of the proceedings.”⁹¹

In United States v. Bergdahl, CAAF recently articulated that statements made on the national level by senior governmental officials that were sharply critical of a service member who was suspected and later charged with offenses under the UCMJ were “perilous.”⁹² CAAF explained:

Because of their capacity to influence decision makers in a court-martial, comments about a pending criminal matter pose a grave risk to the goal of ensuring that justice is done in every case. Specifically, improper statements could cause an innocent accused to suffer adverse criminal consequences such as a wrongful conviction or an increased sentence, or could cause a guilty accused to walk free ․ if the actual or apparent [UCI] results in the dismissal of charges.93

The same could be said of the actions of and statements made by the battalion commander and sergeant major who conveyed by their deeds and words to Appellant's entire battalion that they believed he and his cohorts were guilty of offenses that “jeopardize[d] our success in battle” and “endanger[ed] all of our lives.”⁹⁴ While we readily acknowledge the demanding responsibility for the leadership of a Marine infantry battalion to maintain good order and discipline, there are permissible and impermissible means under the Constitution and the UCMJ to discharge that responsibility. The course of action taken by LtCol Oscar and SgtMaj Delta to orchestrate the public mass arrest and verbal denigration of Appellant and other Marines, who were suspected of transporting for profit immigrants who had illegally entered the United States, recklessly and unnecessarily imperiled Appellant's ability to receive a fair outcome in his subsequent court-martial. However, much like CAAF determined with regard to the appellant in Bergdahl, we conclude in this particular case a finding of apparent UCI is not warranted because there was no intolerable strain on the military justice system.⁹⁵ This conclusion is predicated on all the relevant facts of this case, regardless of whether the various stages of the court-martial are viewed individually or cumulatively.⁹⁶

As an initial matter, Appellant confessed when interrogated by NCIS to having participated in two human smuggling runs within the United States, having been paid $800 for his participation in the first run and ultimately not being able to collect the money he was promised for participating in the second run.⁹⁷ NCIS also obtained text messages sent by Appellant that demonstrated his involvement in human smuggling.⁹⁸ He was subsequently charged with serious criminal violations of federal civilian law that were assimilated under Article 134, UCMJ. Specifically, he was charged with two specifications of conspiring to transport aliens for financial gain and one specification of the substantive offense of transporting aliens for financial gain. Had he been indicted by a grand jury and subsequently convicted in civilian federal court, each offense would carry a maximum term of imprisonment of 10 years.⁹⁹ In light of the severity of these offenses and the strength of the Government's evidence, an objective, disinterested observer clearly would have expected the Marine Corps to court-martial Appellant for this conduct regardless of the actions and statements of LtCol Oscar and SgtMaj Delta.¹⁰⁰ There is also no evidence in the record that NCIS's investigation of Appellant was affected by the facts and circumstances surrounding his apprehension. Thus, there was no appearance of UCI during the investigation and preferral stages of this case.¹⁰¹

Although the three offenses for which he was charged carried a total maximum confinement component of 30 years and a dishonorable discharge if convicted at a general court-martial, the charges in his case were referred to a special court-martial where he faced a maximum punishment that included only a year of confinement and a BCD. Therefore, there was no appearance of UCI in the referral stage of this case.

With regard to the next stage of Appellant's court-martial proceedings, it is very significant that he chose to plead guilty to the offenses of transporting and conspiring to transport aliens for financial gain.¹⁰² In doing so, he explicitly stated in open court that he was voluntarily pleading guilty because he was in fact guilty.¹⁰³ During a substantial plea colloquy, Appellant explained in detail how he conspired with another Marine in his unit to transport for profit immigrants who had illegally crossed into the United States from Mexico. He also stated how, on two separate occasions, he subsequently executed that agreement by picking up a total of five persons who had entered the United States illegally and transported them from a sparsely populated area near the international border to a more heavily populated area in California where the immigrants could better blend in without their undocumented status being discovered. Additionally, Appellant testified that the charged offenses “correctly describe what [he] did.”¹⁰⁴ Based on Appellant's own words, no impartial observer would conclude that it was the actions and comments of his battalion commander and sergeant major that caused him to plead guilty; rather it was the strength of the Government's evidence, and the beneficial plea agreement Appellant received, which caused him to take that step.¹⁰⁵

Moreover, after TDC informed the military judge that they had obtained the video of the public mass arrest, the military judge inquired if the Defense wished to raise any motions arising from the video. TDC replied in the negative and said the Defense simply wished to use the video as evidence in extenuation and mitigation.¹⁰⁶ Later, during sentencing argument, when TDC referenced the video, the military judge interrupted her and specifically inquired if she was raising, among other things, a UCI motion, to which TDC again replied in the negative.¹⁰⁷ Furthermore, in a post-trial Article 39(a) session called sua sponte by the military judge, Appellant told the military judge in open court: that he elected to give up, among other things, the right to raise a UCI motion; that his counsel had explained to him the consequences of giving up that motion; that no one had forced him to give up that motion; that the Government did not propose to him that he waive a UCI motion; and that he understood that if he raised the UCI motion one possible outcome could have been the military judge ordering the dismissal of all charges in his case.¹⁰⁸ Yet, knowing all this, Appellant affirmed in open court that he wished to give up raising a UCI motion and other motions to obtain the benefit of his plea agreement.¹⁰⁹ Therefore, no claim of unfairness regarding the guilty plea phase of the court-martial proceedings can prevail.¹¹⁰

With regard to the sentencing stage of the proceedings, Appellant obtained the benefit of a time-served plea agreement, which restrained the military judge from adjudging more than 98 days of confinement for offenses that would be considered serious felonies in federal civilian court. Additionally, as discussed supra, during the post-trial Article 39(a) session, without making a finding of UCI, the military judge offered to re-open the sentencing proceedings, to ensure that Appellant's gunnery sergeant was produced, and to order him both to testify truthfully and to disregard Appellant's public apprehension. However, Appellant personally declined on the record to re-open sentencing and receive the prophylactic remedy offered by the military judge. Instead, he informed the military judge that he wished to accept responsibility for his misconduct and receive the benefit of his plea agreement. Moreover, although the military judge sentenced Appellant to a BCD, he announced at the post-trial Article 39(a) session that he would recommend the convening authority suspend the adjudged discharge due to concerns he had about the possible occurrence of UCI in this case.¹¹¹ Therefore, no claim of unfairness regarding the sentencing phase of the court-martial proceedings is warranted.

With regard to the post-trial phase of the court-martial, unlike the appellant in Bergdahl,¹¹² the convening authority in this case granted substantial clemency in Appellant's case when he suspended the adjudged BCD as recommended by the military judge. Therefore, we are confident that an objective, disinterested observer would decide that the O-8 convening authority for post-trial matters was unaffected, at least in a way that would have harmed Appellant, by the actions taken and comments made by Appellant's O-5 battalion commander and E-9 sergeant major.

The totality of these circumstances makes it clear beyond a reasonable doubt that LtCol Oscar and SgtMaj Delta's actions did not place an intolerable strain upon the public's perception of the military justice system in this particular case.¹¹³ Although LtCol Oscar and SgtMaj Delta's actions and statements at issue were indeed troubling, inappropriate, and ill-advised, the record reflects that the decision-making at each stage of Appellant's court-martial was unaffected by their actions or any other inappropriate outside influences.¹¹⁴ Stated another way, Appellant was not personally prejudiced by the UCI which, as CAAF recently reemphasized in United States v. Proctor, is a “significant factor in determining whether the [UCI] created an intolerable strain on the public's perception of the military justice system.”¹¹⁵ Thus, we are confident, beyond a reasonable doubt, that the UCI in this case “did not place an intolerable strain upon the public's perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of these proceedings.”¹¹⁶

D. Type Three Accuser

1. Standard of review and law

Whether an appellant has waived an issue is a question of law that we review de novo.¹¹⁷ “[W]aiver is the intentional relinquishment or abandonment of a known right.”¹¹⁸ When an appellant “intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.”¹¹⁹ A waiver leaves “no error to correct on appeal.”¹²⁰ A “waive all waivable motions” clause constitutes an affirmative waiver.¹²¹ “A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution.”¹²²

An unconditional guilty plea forfeits all nonjurisdictional defects at earlier stages of the proceedings.¹²³ If an appellant has forfeited a right by failing to raise it at trial, we review the issue for plain error.¹²⁴ To establish plain error, an appellant must show that: (1) there is error; (2) the error is plain or obvious; and (3) the error resulted in material prejudice.¹²⁵

Whether a convening authority is an “accuser” under Article 1(9), UCMJ, is a question of law that we also review de novo.¹²⁶ R.C.M. 504(c)(1) prohibits an accuser from convening a general or special court-martial. Among other things, Article 1(9), UCMJ, defines an “accuser” as someone “who has an interest other than the official interest in the prosecution of the accused.”¹²⁷ This type of accuser is commonly referred to as a “type three” accuser.¹²⁸

Convening authorities are presumed to be unbiased, and an appellant shoulders the burden to rebut that assumption.¹²⁹ The test for determining whether a convening authority is a type three accuser is whether he or she “was so closely connected to the offense that a reasonable person would conclude that [he or she] had a personal interest in the matter.”¹³⁰ This interest may be derived from his or her ego, family, or personal property, and it must be something more than “misguided zeal alone.”¹³¹

2. Appellant waived any type three accuser issue by agreeing to “waive all waivable motions”

Appellant argues on appeal that Col Whiskey, who served as the convening authority in his case until the military judge disqualified him from the post-trial stage of the case, was a type three accuser at the time of the referral of the charges. However, Appellant did not raise this issue prior to pleading guilty under a plea agreement in which he agreed to “waive all waivable motions.” Although he highlights that he did not have access to the evidence of Col Whiskey's involvement in planning the public mass arrest, the record reflects that at the post-trial Article 39(a) session, the military judge called for a recess during which Appellant and his TDC reviewed evidence that showed the extent of Col Whiskey's involvement in the planning of the public mass arrest: his mere knowledge of the arrangements for the mass arrest. Because Appellant agreed to “waive all waivable motions,” and because type three accuser issues are waivable, we find he waived the issue.

3. Assuming arguendo that Appellant did not waive the type three accuser issue, he fails to establish plain error

Assuming arguendo Appellant did not waive the issue, we find a reasonable person would not consider Col Whiskey to be a type three accuser in this case. Appellant claims Col Whiskey was directly involved in the planning of the mass arrest, citing to Col Whiskey's knowledge of the investigation and his receipt of advance notification of the mass arrest, and argues that this involvement is evidence of his bias. However, nothing in the record demonstrates that Col Whiskey maintained anything but a professional and official interest in Appellant's case. Neither knowledge of NCIS's investigation into allegations that 1/5 Marines were involved in human trafficking nor prior notification of the plan for the mass arrest prove that Col Whiskey harbored a personal stake in Appellant's case. As CAAF has previously explained, “[i]nterest in an incident and the investigation thereof is not personal—it is in fact the responsibility of a commander.”¹³² Moreover, there is no indication that Col Whiskey exhibited even “misguided zeal” in his approach to the case. For these reasons, we find that Col Whiskey was not a type three accuser, and thus, was not prohibited from serving as the convening authority in Appellant's case at the time of the referral of the charges. As such, Appellant fails to establish error, let alone plain error, with regard to this issue.¹³³

E. Validity of Appellant's Pleas and Plea Agreement in Light of Col Whiskey's Role as the Convening Authority

1. Standard of review and the law

We review a judge's decision to accept a plea under an abuse of discretion standard.¹³⁴ “The test for an abuse of discretion in accepting a guilty plea is whether the record shows a substantial basis in law or fact for questioning the plea.”¹³⁵

Appellate courts are reluctant to overturn guilty pleas. “Once the military judge has accepted a plea as provident and has entered finding based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused's statements or other evidence of record.”¹³⁶ “A ‘mere possibility’ of such a conflict is an insufficient basis to overturn the trial results.”¹³⁷

The mere fact of the existence of UCI alone is insufficient to invalidate a court-martial's jurisdiction and overturn a guilty plea.¹³⁸ R.C.M. 705(a) provides that “an accused and the convening authority may enter into a plea agreement.” Moreover, our superior court has rejected the argument that convening authorities, designated by Article 23(a)(1), UCMJ, would lose jurisdiction “even in egregious cases of command influence.”¹³⁹ CAAF has also held that in cases of recognized UCI, when a plea is voluntarily entered, the plea will not be deemed improvident solely because of that UCI.¹⁴⁰

2. Appellant's pleas were provident even though the military judge removed Col Whiskey from post-trial action, and there was no substantial conflict between the pleas and the evidence in the record

Appellant argues that the findings and sentence should be set aside because his pleas were improvident due to his reliance on a plea agreement that was invalid because it was signed by Col Whiskey. Although the military judge disqualified Col Whiskey from serving as the convening authority during the post-trial stage of Appellant's case because of concerns that Col Whiskey was a source of UCI, the military judge's remedy does not control the issue before us. Rather, we look to see if there is a substantial conflict between Appellant's plea and the evidence in the record, or if other circumstances were present that would invalidate his pleas of guilty.

At trial, the military judge conducted a thorough colloquy with Appellant, detailing his misconduct and confirming his knowing and voluntary decision to accept the plea agreement. A week later, the military judge called the parties back to a post-trial Article 39(a) session. There, the military judge repeatedly asked Appellant if he wanted to continue with his pleas, specifically in light of possible UCI, and Appellant repeatedly affirmed that he did. Indeed, Appellant reiterated his desire to leave his pleas of guilty undisturbed, saying “I'm just going to continue with the plea. What I did is what I did, so I'm okay.”¹⁴¹ Furthermore, after the military judge announced that he would remove Col Whiskey from the post-trial stage of his court-martial, Appellant confirmed that he was satisfied with that remedy.¹⁴² Additionally, there is no evidence before us to suggest that Col Whiskey's foreknowledge of the public mass arrest impacted Appellant's decision to plead guilty.

Thus, regardless of Col Whiskey being disqualified by the military judge to serve as the convening authority during the post-trial phase of the court-martial, there is no legal or factual basis to deem Appellant's pleas as improvident. For these reasons, we conclude that Appellant's argument on this issue is without merit.

F. Validity of Post-Trial Action in Light of LtCol Hotel's Role as the SJA

1. Standard of review and the law

As an initial matter, we recognize that under the Military Justice Act of 2016,¹⁴³ the UCMJ and the Rules for Courts-Martial no longer provide for review of courts-martial by the SJA or legal advisor. Under the current system, the convening authority must consult with the SJA or legal advisor in determining whether to take action or decline to take action on the findings or sentence of a court-martial.¹⁴⁴ We hold that the grounds that would have disqualified an SJA or legal officer from conducting a post-trial review of a court-martial case under the previous system apply with equal force to the post-trial advice that they are called upon to provide under the current system.

The disqualification of an SJA from providing post-trial advice to the convening authority is a question of law that we review de novo.¹⁴⁵ An appellant has the initial burden of making a prima facie case that the SJA should have been disqualified.¹⁴⁶

Article 6(c), UCMJ, dictates that a judge advocate may not serve as the SJA to any reviewing or convening authority in a case if he or she has served in the capacity as a preliminary hearing officer, court member, military judge, military magistrate, preliminary hearing officer, appellate judge, or counsel in the case. An SJA is also disqualified if he or she has other than an official interest, that is, a personal interest in the outcome of a particular case.¹⁴⁷ It is important to note that this does not preclude a SJA from expressing his or her opinion about a particular case. Rather, “it is only when the staff judge advocate oversteps the bounds of impartiality and becomes a ‘member’ of the prosecution that he is estopped from thereafter passing judgment on the fruit of his labors.”¹⁴⁸

If an SJA who should have been disqualified provides post-trial advice to the convening authority, we must order new post-trial processing if Appellant makes “some colorable showing of possible prejudice.”  ¹⁴⁹

2. Appellant fails to make a prima facie case that LtCol Hotel should have been disqualified from providing post-trial advice, and assuming arguendo that he met that burden, Appellant fails to make “some colorable showing of possible prejudice”

We do not find that the SJA's involvement in this case demonstrated a personal interest in Appellant's court-martial. The SJA did participate in some of the planning for the mass arrest and was included on email correspondence concerning it both before and after the event. Yet, there is nothing in the record showing that the SJA acted on behalf of the prosecution or exhibited anything other than a professional interest in the case. Of note, there is no indication in the record that the SJA was present when the public mass arrest was conducted or that he had foreknowledge of or otherwise condoned the pejorative remarks about the apprehended Marines made by LtCol Oscar and SgtMaj Delta to the battalion. Therefore, Appellant fails to establish a prima facie case that it was required for the SJA to have been disqualified from providing post-trial advice to the convening authority in this case.¹⁵⁰

Furthermore, assuming arguendo that Appellant had met his burden with regard to the disqualification of the SJA, he still fails to show that he suffered “some colorable showing of prejudice” as a result of the SJA's provision of post-trial advice. Simply stated, under the facts and circumstances of this case, the SJA's post-trial advice could not have prejudiced Appellant. During the post-trial Article 39(a) session, Appellant agreed with the military judge's assessment that he “had a fair, if not lenient, agreement with the Government.”¹⁵¹ The sentence became all the more favorable after the military judge recommended suspension of the BCD based on his belief that UCI may be present in Appellant's case. Subsequently, the SJA accurately summarized that recommendation to the new convening authority, who, in turn, adopted it by suspending the adjudged BCD. Moreover, Appellant did not submit additional matters for the convening authority's consideration. Therefore, assuming arguendo that the SJA should have been disqualified, Appellant fails to make a “colorable showing of possible prejudice.”¹⁵² For these reasons, we find Appellant's request for relief based on this issue to be without merit.

G. Ineffective Assistance of Counsel

1. Standard of review and the law

We review claims of ineffective assistance of counsel de novo. In Strickland v. Washington,  ¹⁵³ the Supreme Court laid out the test that guides our analysis. In order to prevail on such a claim, “an appellant must demonstrate both (1) that his counsel's performance was deficient, and (2) that this deficiency resulted in prejudice.”¹⁵⁴ The Appellant bears the “burden of establishing the truth of factual matters relevant to the claim.”¹⁵⁵ Only after an appellant has met his burden and has demonstrated both deficiency and prejudice can we find in the appellant's favor on an ineffective assistance of counsel claim.¹⁵⁶ “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ․ that course should be followed.”¹⁵⁷ Strategic decisions to accept or forgo a potential benefit are not deficient when the decisions are objectively reasonable.¹⁵⁸

2. Appellant fails to establish that CDC or TDC were deficient with regard to discovery issues

Appellant argues that his CDC and TDC were deficient for failure to submit any requests for discovery and for not investigating or considering the implications of the public mass arrest. However, the credible, sworn declarations of LT Sierra and LT Mitchell establish that although they did not submit a formal discovery request, as the result of an informal request they submitted, the Defense received and reviewed over 1,800 pages of discovery prior to Appellant's arraignment. Moreover, approximately two weeks prior to Appellant's guilty plea and sentencing hearing, TDC confirmed with the Government that they had received all discovery in the case. Additionally, CDC and both TDC were generally aware of the facts and circumstances surrounding Appellant's apprehension, and they discussed how UCI could be raised in his case to pursue a favorable outcome for him. However, all three counsel assert, and the Court finds credible, that Appellant was primarily focused on getting released from pretrial confinement as soon as possible so that he could be with and support his pregnant girlfriend. Appellant confirmed this in his own declaration. That goal was well-served by the time-served deal negotiated and executed by his Defense team.¹⁵⁹ Therefore, we find that the Defense team was not deficient with regard to discovery issues.

Assuming arguendo that the Defense team was deficient for not specifically seeking discovery of any audio-visual recording of the public mass arrest, Appellant fails to establish prejudice for this alleged misstep by his counsel. At the time that Appellant signed his “time-served” plea agreement at special court-martial, Marines in companion cases were headed to Article 32, UCMJ, preliminary hearings and potentially towards resolution at general courts-martial. Although many, if not all, of the accused in the companion cases ultimately resolved their cases via separations in lieu of trial, this only occurred after some of them took more risk than Appellant was willing to tolerate in his own case, by bringing UCI motions. Essentially, Appellant, who received a guaranteed speedy release from confinement provided by his favorable plea agreement, now asserts that he was prejudiced because he did not reap the benefits of taking a bolder, less certain approach to his case which he knowingly declined. This argument is unpersuasive to us.

3. TDC were not deficient with regard to the course of action they pursued after becoming aware of the video of the public mass arrest

Appellant also argues that TDC were deficient because they did not seek a continuance or recess to adequately research issues associated with the video of the public mass arrest, once they became aware of it during a recess between the providence inquiry and the sentencing hearing. However, as established by their credible, sworn declarations, after watching the video together, and then again with Appellant, LT Sierra and LT Mitchell told Appellant that there were several courses of action they could take, such as requesting a continuance, bringing motions for UCI and illegal pretrial punishment, renegotiating the plea agreement, or contesting the charges at trial. They also explained that a possible outcome of these actions would be for the charges to be dismissed. In response, Appellant asked his TDC if any of those actions would risk his being sent back to pretrial confinement. LT Sierra and LT Mitchell correctly informed him that they could not make any guarantees because if the convening authority believed that Appellant was voiding the plea agreement, it was possible that he would direct Appellant to be returned to pretrial confinement. After acknowledging the negative consequences of a conviction and the possible benefits of the courses of actions presented to him by his TDC, Appellant told them that he did not want to take the risk. As LT Sierra explained in her sworn declaration to the Court, “Appellant was certain that he wanted his case resolved that day, and adamant that we not take any chance of him being returned to pre-trial confinement or delay his ultimate separation from the Marines.”¹⁶⁰ Moreover, Appellant's informed decision to proceed with his guilty plea was memorialized in a contemporaneous, handwritten memorandum, in which he wrote, “I understand and do not want to back out of the [plea agreement],” followed by his printed name, signature, and date. Next, with Appellant's consent, TDC offered the video of the public mass arrest as evidence in extenuation and mitigation. The evidence of potential UCI depicted in the video ultimately resulted in the military judge recommending, and the convening authority agreeing to suspend, the adjudged BCD.

Under these facts and circumstances, we find that LT Sierra and LT Mitchell were not deficient with regard to the course of action they took upon learning about the existence of the video. Indeed, their thorough advice to Appellant, contemporaneous memorialization of that advice into a memorandum signed by Appellant, and successful use of the video in sentencing could easily be described as “best practices” worthy of emulation by other defense counsel facing similar situations.

4. LT Sierra was not deficient with regard to the course of action she pursued upon learning of Col Whiskey's involvement in the public mass arrest

Appellant further argues that LT Sierra was deficient for not seeking a continuance after learning at the post-trial Article 39(a) session of the involvement of the convening authority [Col Whiskey] in the public mass arrest. In her sworn declaration to the Court, LT Sierra explained that she learned this information at the same time the military judge stated his intention to remove Col Whiskey as the convening authority during the post-trial phase of Appellant's court-martial. LT Sierra also asserted that she did not seek an extended recess or continuance because the military judge's announced intention to remove Col Whiskey for post-trial action was a reasonable and beneficial solution in line with Appellant's desire for a quick resolution of his case.

During the recess which was granted, LT Sierra discussed the matter with Appellant. She informed him of her intent to ask the military judge to recommend suspending the adjudged BCD as a result of the discovery violation [the Government's withholding of the video of the public mass arrest], and how the convening authority could choose whether to grant the suspension, which would allow Appellant to separate administratively from the Marine Corps. LT Sierra also explained to Appellant that from her review of the motion from the companion cases, which included detailed affidavits and various emails concerning the mass arrest, she concluded nothing indicated that MajGen Charlie shared the beliefs of Col Whiskey or condoned his actions with regard to the mass arrest. Based on the fact that Appellant was already out of confinement and his desire to put the case behind him, LT Sierra believed that the disqualification of Col Whiskey benefitted Appellant. Moreover, based on the negative publicity that 1/5 was receiving in the media based on motions filed in the companion cases, and based on news articles that were published after the video was released, LT Sierra believed that the new convening authority “would be hyper-aware of the situation, and if influenced by these things at all, he would be so in Appellant's favor.”¹⁶¹ She asserted to this Court that Appellant understood the issues they discussed and agreed to the disqualification of Col Whiskey, because it could benefit him, finalize his case sooner, and there was nothing in the enclosures from the companion case's UCI motion that called the impartiality of MajGen Charlie into question. In conclusion, LT Sierra notes, “I believe we were correct since the new Convening Authority did agree to uphold the Military Judge's recommendation, which the Military Judge made sua sponte before I could request it.”¹⁶²

Under these facts and circumstances, we find that LT Sierra's strategic decision to accept the benefit of Col Whiskey's disqualification as the convening authority was not deficient; that decision was objectively reasonable.¹⁶³

5. LT Sierra was not deficient by not asking the military judge to disqualify the SJA from the post-trial stage of the case

Appellant argues that LT Sierra was deficient for failure to ask the military judge to disqualify the SJA from the post-trial stage of his case. However, in her sworn declaration to the Court, LT Sierra explained:

I did not ask the Military Judge to disqualify the staff judge advocate from post-trial processing because I believed that between the new Convening Authority and the external judicial and media pressure, it was sufficient to ensure proper post-trial action was being safeguarded. I had no information or cause for concern that the existing staff judge advocate could not or would not perform his legal duties in a fair and consistent manner.164

As discussed supra, Appellant fails to establish a prima facie case that the SJA should have been disqualified from providing post-trial advice to the convening authority in this case. Moreover, assuming arguendo that Appellant had met his burden with regard to the disqualification of the SJA, he still fails to show that he suffered “some colorable showing of prejudice” as a result of the SJA's provision of post-trial advice. Under these facts and circumstances, we find that LT Sierra's strategic decision to forego the potential benefit of the disqualification of LtCol Hotel as the SJA during the post-trial stage of the case was not deficient as that decision was objectively reasonable.¹⁶⁵

III. Conclusion

After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant's substantial rights occurred.¹⁶⁶

The findings and sentence are AFFIRMED.

FOOTNOTES

2.   373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

3.   We have reviewed this assigned error and find it to be without merit. United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).

4.   On 28 June 2021, Appellant filed a Motion for Leave to File and Motion to Supplement Brief and Assignments of Error based on new information that has been presented pursuant to this Court's Order for declarations from Appellant's civilian and trial defense counsel. We denied this motion as untimely. Assuming arguendo that we had granted the motion, we would have found the arguments contained therein to be without merit. See Matias, 25 M.J. at 363.

5.   All names used in this opinion, except those of the judges, appellate counsel, and Appellant are pseudonyms.

6.   Appellant's Mtn. to Attach, app'x M at 2 (Aug. 18, 2020).

7.   Id. at 3.

8.   App. Ex. IV at 18.

9.   Id. at 30.

10.   Id. at 26.

11.   Appellant's Mtn. to Attach, app'x J at 4 (Aug. 18, 2020).

12.   Appellant's Mtn. to Attach, encl. (1) at 2 (Mar. 31, 2020). In his second motion to attach, Appellant submits notes taken by the Regional Defense Counsel–Western Region, who was present at an Article 39(a), UCMJ, hearing for one of the companion cases and who heard testimony from the NCIS agents, the battalion commander, and COMSTRAT personnel. While we do not give this evidence the same weight as we would to an official transcript of such a hearing, there is sufficient detail and consistency among the witness notes for us to be convinced of this particular fact.

13.   Appellant's Mtn. to Attach, app'x C at 1 (Aug. 18, 2020).

14.   Def. Ex. E.

15.   App. Ex. IV at 12.

16.   Appellant waived the presence of TDC, LT Mitchell, at the post-trial Article 39(a) session.

17.   R. at 118.

18.   R. at 119.

19.   66 M.J. 346, 350–51 (C.A.A.F. 2008).

20.   Appellee's Order Response, app'x C at 2.

21.   Appellee's Order Response, app'x A at 3.

22.   Id., app'x A and B.

23.   Id., app'x A at 7.

24.   United States v. Coleman, 72 M.J. 184, 187 (C.A.A.F. 2013).

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

26.   United States v. Ruiz, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (quoting Brady, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963)).

27.   United States v. Augurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

28.   United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999).

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

30.   Id.

31.   Ahern, 76 M.J. at 197.

32.   Gladue, 67 M.J. at 314.

33.   Id. (quoting United States v. Mezzanatto, 513 U.S. 196, 201, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995)).

34.   United States v. Boyce, 76 M.J. 242, 253 (C.A.A.F. 2017).

35.   See Gladue, 67 M.J. at 313.

36.   See Coleman, 72 M.J. at 187.

37.   United States v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002).

38.   Id.

39.   Ahern, 76 M.J. at 197.

40.   United States v. McFadyen, 51 M.J. 289, 291 (C.A.A.F. 1999).

41.   United States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003).

42.   Id.

43.   R. at 17.

44.   App. Ex. I at 5.

45.   R. at 72.

46.   R. at 96.

47.   R. at 103.

48.   R. at 108–09.

49.   R. at 110–13.

50.   See McFadyen, 51 M.J. at 291.

51.   See United States v. Chin, 75 M.J. 220, 222–24 (C.A.A.F. 2016).

52.   See United States v. Forbes, 77 M.J. 765, 774 (N.M. Ct. Crim. App. 2018).

53.   United States v. Boyce, 76 M.J. 242, 247 (C.A.A.F. 2017).

54.   Id.

55.   Id. at 249 (quoting United States v. Lewis, 63 M.J. 405, 413 (C.A.A.F. 2006)).

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

57.   United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999).

58.   Id.

59.   Id.

60.   Id.

61.   Id.

62.   Id.

63.   United States v. Ayala, 43 M.J. 296, 299 (C.A.A.F. 1995) (internal citations omitted).

64.   Douglas, 68 M.J. at 354.

65.   Id.

66.   Biagase, 50 M.J. at 150.

67.   United States v. Bergdahl, 80 M.J. 230, 234 (C.A.A.F. 2020) (internal citations omitted).

68.   Id. (internal quotation and citation omitted).

69.   United States v. Proctor, 81 M.J. 250, 254–55, 2021 CAAF LEXIS 509 at *13 (C.A.A.F. 2021).

70.   Id. (quoting Boyce, 76 M.J. at 248).

71.   Id. (quoting Boyce, 76 M.J. at 248 n.5).

72.   Douglas, 68 M.J. at 354.

73.   Id.

74.   Id. at 354–55 (internal quotations and citations omitted).

75.   Id. at 354.

76.   Id.

77.   Gladue, 67 M.J. at 313 (internal quotations and citations omitted).

78.   Id.

79.   United States v. Weasler, 43 M.J. 15, 17–18 (C.A.A.F. 1995).

80.   United States v. Drayton, 45 M.J. 180, 182 (C.A.A.F. 1996).

81.   United States v. Baldwin, 54 M.J. 308, 310 n.2 (C.A.A.F. 2001); see also Douglas, 68 M.J. at 356 n.7 (considering appellant's “acquiescence and silence” on issues of waiver but noting that “this Court has not applied the doctrine of waiver where unlawful command influence is at issue.”) (citing United States v. Johnston, 39 M.J. 242, 244 (CMA 1994)); Johnston, 39 M.J. at 244 (noting “[UCI] is not waived by failure to raise at trial.”)

82.   Weasler, 43 M.J. at 19.

83.   R. at 114.

84.   Weasler, 43 M.J. at 19.

85.   See Gladue, 67 M.J. at 313.

86.   See Douglas, 68 M.J. at 356.

87.   Chin, 75 M.J. at 222–24.

88.   See Biagase, 50 M.J. at 150.

89.   Id.

90.   See Proctor, 81 M.J. at 255–56, 2021 CAAF LEXIS at *14.

91.   Id. (internal quotation and citation omitted).

92.   80 M.J. at 238.

93.   Id. at 238–39.

94.   Def. Ex. E.

95.   See Bergdahl, 80 M.J. at 239.

96.   Id.

97.   Pros. Ex. 2.

98.   Pros. Ex. 3.

99.   8 U.S.C. § 1324(1)(B)(i).

100.   See Bergdahl, 80 M.J. at 239.

101.   Id.

102.   Appellant's plea agreement permitted him to plead “Not Guilty” to one of the two referred specifications of conspiring to transport aliens for profit. App. Ex. I at 3.

103.   R. at 64–65.

104.   Id. at 31, 45–46.

105.   See Bergdahl, 80 M.J. at 242.

106.   R. at 72.

107.   R. at 96.

108.   R. at 109–10.

109.   R. at 110.

110.   See Bergdahl, 80 M.J. at 244.

111.   R. at 118–19.

112.   Bergdahl, 80 M.J. at 244.

113.   Id.

114.   Id.

115.   Proctor, 81 M.J. at 255, 2021 CAAF LEXIS at *13.

116.   Id. (internal citation omitted).

117.   Ahern, 76 M.J. at 197.

118.   Gladue, 67 M.J. at 313 (internal quotations and citations omitted).

119.   Id.

120.   Ahern, 76 M.J. at 197.

121.   Gladue, 67 M.J. at 314.

122.   Id. (quoting United States v. Mezzanatto, 513 U.S. at 201, 115 S.Ct. 797).

123.   R.C.M. 905.

124.   Gladue, 67 M.J. at 313.

125.   United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008).

126.   United States v. Ashby, 68 M.J. 108, 129 (C.A.A.F. 2009).

127.   Article 1(9), UCMJ.

128.   Ashby, 68 M.J. at 129.

129.   United States v. Schweitzer, 2007 CCA LEXIS 164 *29 (N.M. Ct. Crim. App. 2007)(unpublished).

130.   United States v. Voorhees, 50 M.J. 494, 499 (C.A.A.F. 1999) (internal citations omitted).

131.   Id.

132.   Ashby, 68 M.J. at 131.

133.   Maynard, 66 M.J. at 244.

134.   United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).

135.   United States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014).

136.   United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996).

137.   Id. (internal citation omitted).

138.   United States v. Blaylock, 15 M.J. 190, 192–93 (C.M.A. 1983).

139.   Id. at 193.

140.   United States v. Gleason, 43 M.J. 69, 75 (C.A.A.F. 1995)

141.   R. at 115.

142.   R. at 117.

143.   National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, §§ 5321–30, 130 Stat. 2000 (2016) (codified as 10 U.S.C. §§ 860–65); 2018 Amendments to the Manual for Courts-Martial, United States, Exec. Order 13,825, 83 Fed. Reg. 9889 (Mar. 1, 2018).

144.   R.C.M. 1109(d)(2).

145.   See United States v. Taylor, 60 M.J. 190, 194 (C.A.A.F. 2004).

146.   See United States v. Wansley, 46 M.J. 335, 337 (C.A.A.F. 1997).

147.   See United States v. Sorrell, 47 M.J. 432, 433 (C.A.A.F. 1998).

148.   United States v. Mallicote, 13 C.M.A. 374, 378, 32 C.M.R. 374, 378 (1962).

149.   See Taylor, 60 M.J. at 195.

150.   See Article 6(c), UCMJ; Sorrell, 47 M.J. at 433.

151.   R. at 115.

152.   See Taylor, 60 M.J. at 195.

153.   466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

154.   United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

155.   Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008), aff'd, 556 U.S. 904, 129 S.Ct. 2213, 173 L.Ed.2d 1235, (2009).

156.   United States v. Cooper, 80 M.J. 664, 672 (N.M. Ct. Crim. App. 2020).

157.   Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

158.   United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012).

159.   Indeed, when the date of the guilty plea and sentencing hearing was delayed, through advocacy with the convening authority, it appears from the record LT Sierra successfully obtained the release of Appellant from the brig one day before trial.

160.   Appellee's Order Response, app'x A at 3.

161.   Appellee's Order Response, app'x A at 7.

162.   Id.

163.   See Datavs, 71 M.J. at 424.

164.   Appellee's Order Response, app'x A at 7.

165.   See Datavs, 71 M.J. at 424.

166.   Articles 59, 66, UCMJ.

MONAHAN, Chief Judge:

Chief Judge MONAHAN delivered the opinion of the Court, in which Senior Judge STEPHENS and Judge DEERWESTER joined. Senior Judge STEPHENS and Judge DEERWESTER concur.