This opinion is subject to administrative correction before final disposition.




                                Before
                  FULTON, HITESMAN, and CRISFIELD,
                       Appellate Military Judges

                          _________________________

                            UNITED STATES
                                Appellee

                                      v.

                         Nhubu C. CHIKAKA
                 Staff Sergeant (E-6), U.S. Marine Corps
                                Appellant

                              No. 201400251

                            Decided: 14 June 2019

   Appeal from the United States Navy-Marine Corps Trial Judiciary
   Upon further review following remand from the United States Court
   of Appeals for the Armed Forces. Military Judge: Lieutenant Colonel
   David M. Jones, USMC. Sentence adjudged 14 March 2014 by a gen-
   eral court-martial convened at Marine Corps Recruit Depot, Parris Is-
   land, South Carolina, consisting of officer and enlisted members. Sen-
   tence approved by the convening authority: reduction to pay grade E-
   1, forfeiture of all pay and allowances, confinement for 10 years, 1 and
   a dishonorable discharge.

   For Appellant: Lieutenant Doug Ottenwess, JAGC, USN.

   For Appellee: Captain Brian L. Farrell, USMC.




   1 The Convening Authority, as a matter of clemency, reduced the adjudged con-
finement from 12 years to 10 years.
            United States v. Chikaka, No. 201400251 (Further Review)


   Senior Judge FULTON delivered the opinion of the Court, in which
   Senior Judge HITESMAN and Judge CRISFIELD joined.

                             _________________________

           This opinion does not serve as binding precedent, but
            may be cited as persuasive authority under NMCCA
                   Rule of Practice and Procedure 30.2.

                             _________________________

FULTON, Senior Judge:
    A panel of officer and enlisted members sitting as a general court-martial
convicted the appellant, contrary to his pleas, of one specification of attempt-
ed abusive sexual contact, nine specifications of violation of a general order,
one specification of wrongful sexual contact, one specification of abusive sex-
ual contact, four specifications of obstruction of justice, one specification of
indecent language, and one specification of adultery, in violation of Articles
80, 92, 120, and 134, Uniform Code of Military Justice (UCMJ). 2

                                  I. BACKGROUND

A. Factual background
    The appellant was a recruiter. In the course of his duties, he met four fe-
male high school students who were interested in becoming Marines. The ap-
pellant sent the girls thousands of inappropriate electronic communications,
and engaged in unwanted sexual activity with two of them. The appellant
plied a third girl with alcohol and began an adulterous relationship with her.
The appellant encouraged the girls not to disclose his conduct, and continued
to so encourage them even after his offenses were reported.

B. The appellant’s court-martial
    We are now concerned only with the presentencing phase of the trial.
During presentencing, the military judge admitted a photograph of the
Commandant of the Marine Corps with a victim’s great grandfather, who was
receiving the Congressional Gold Medal at a ceremony. The military judge
also admitted extensive testimony from the appellant’s commanding officer
(CO), during which the trial counsel asked the CO to explain “how important



   2   10 U.S.C. §§ 880, 892, 920, and 934 (2012).



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            United States v. Chikaka, No. 201400251 (Further Review)


it is to set a strong example for general deterrence” 3 in the CO’s recruiting
district. The CO obliged with a long response in which he contrasted the ap-
pellant’s offenses with less serious forms of recruiter misconduct, such as dis-
regarding an applicant’s minor legal troubles or medical issues. The CO ap-
pealed to the members to award a sentence that delivered a message to other
recruiters: that “[i]f you do this, everything around you, generally speaking,
is going to stop . . . . There’s no way to lessen the blow. It’s a significant
blow.” 4
    During argument on the sentence, the trial counsel reminded the mem-
bers of the CO’s testimony, telling the members that general deterrence was
a “big issue.” “[The CO] talked about . . . the need to send a strong message
inside the Marine Corps, not just to the high schools and the community, but
for all the . . . recruiters out there right now . . . .” 5 He then asked the mem-
bers to award a sentence that included ten years’ confinement. The members
awarded one that included 12 years’ confinement.

C. Appellate history
    This case is before us for a third time. On 24 June 2015, we set aside the
convening authority’s action so that the appellant could submit clemency
matters. In his ensuing action, the convening authority disapproved confine-
ment in excess of ten years as an act of clemency. After the case was returned
to us, we considered 13 assignments of error. 6 A few of these assignments of
error are relevant now.
    We agreed with the appellant that three of the four obstruction specifica-
tions represented an unreasonable multiplication of charges, and consolidat-
ed them into one specification. We found that the military judge abused his
discretion under Military Rule of Evidence 403 when he admitted testimony
about the anti-misconduct campaign Operation Restore Vigilance. 7 We also
found that the military judge abused his discretion under Rule for Courts-
Martial 1001 when he admitted the testimony from the appellant’s CO urging




   3   Record at 871.
   4   

   5   

   6 See generally United States v. Chikaka, No. 201400251, unpub. op. (N-M. Ct.
Crim. App. 12 Apr. 2016).
   7MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 403, MANUAL FOR COURTS-MARTIAL
(MCM), UNITED STATES (2012 ed.).



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              United States v. Chikaka, No. 201400251 (Further Review)


a harsh sentence that would provide general deterrence. 8 We did not find,
however, that the military judge erred by admitting the photograph of the
Commandant, and we did not find that the appellant’s trial had been affected
by unlawful command influence (UCI).
    We reassessed the appellant’s sentence, approving a sentence of total for-
feitures, reduction to pay grade E-1, confinement for five years, and a dishon-
orable discharge.
   The Court of Appeals for the Armed Forces (CAAF) granted review. That
court found that the CO’s appeal to members for a harsh sentence constituted
some evidence of UCI on the presentencing portion of the case. 9 In a footnote,
the CAAF also wrote that they were “concerned about the admission of the
Commandant’s photograph,” but did not decide whether admission of the
photograph constituted some evidence of UCI. 10 Before the CAAF, the gov-
ernment had urged that any prejudice associated with possible UCI had been
cured by our reassessment of the appellant’s sentence. But the CAAF noted
that we had granted relief because of an unreasonable multiplication of
charges and evidentiary errors, not UCI. 11 The CAAF remanded the case so
that we could determine whether the case was affected by UCI and, if it was,
whether any additional sentencing relief is warranted. 12
    We conclude that actual UCI affected the appellant’s case. We further
conclude that our earlier relief for unreasonable multiplication of charges and
evidentiary error, though substantial, does not completely extinguish the
possibility that the appellant was prejudiced by UCI. We conclude that we
are able to fashion a remedy that cures, beyond a reasonable doubt, any pos-
sible prejudice and upholds public confidence in the proceedings.

                                   II. DISCUSSION

A. Law applicable to UCI
    The prohibition against UCI is codified in Article 37, UCMJ, which states
in part, “[n]o person subject to this chapter may attempt to coerce or . . . in-
fluence the action of a court-martial or any other military tribunal or any



   8   RULE FOR COURTS-MARTIAL (R.C.M.) 1001, MCM, UNITED STATES (2012 ed.).
   9   United States v. Chikaka, 

, 313 (C.A.A.F. 2017).
   10   

   12   

States v. Chikaka, No. 201400251 (Further Review)


member thereof, in reaching the findings or sentence in any case, or the ac-
tion of any convening . . . authority with respect to his judicial acts.” 13 UCI
can be actual or apparent, and we review cases for UCI de novo. 14
   We understand the CAAF’s mandate in this case to require us to deter-
mine whether the appellant’s sentence was affected by either actual or ap-
parent UCI. The tests for actual and apparent UCI are similar, though not
identical.
    Under the familiar burden-shifting test announced by the CAAF in Unit-
ed States v. Biagase, to prevail on a claim of actual unlawful command influ-
ence, the appellant must preliminarily show: (1) facts which, if true, consti-
tute unlawful command influence; (2) that the proceedings were unfair; and
(3) that the unlawful command influence was the cause of the unfairness. 15
The initial burden of showing potential unlawful command influence is low,
but is more than mere allegation or speculation. 16 The quantum of evidence
required to raise unlawful command influence is “some evidence.” 17
   Once an issue of actual unlawful command influence is raised by some ev-
idence, the burden shifts to the government to rebut the allegation beyond a
reasonable doubt that (1) the predicate facts do not exist; (2) the facts do not
constitute unlawful command influence; or (3) the unlawful command influ-
ence did not affect the findings or sentence. 18
    We have been specifically directed to evaluate the sentencing portion of
this case in light of the CAAF’s decision in United States v. Boyce. 19 In Boyce,
the CAAF announced a two-pronged test for apparent UCI. To prevail, the
appellant must show facts, which if true, would constitute UCI. Second, he
must show that the UCI placed an intolerable strain on the public’s percep-
tion of the military justice system because an objective, disinterested observ-
er, fully informed of all the facts and circumstances, would harbor a signifi-
cant doubt about the fairness of the proceeding. 20



   13   10 U.S.C. §837(a) (2012).
   14   United States v. Harvey, 

, 19 (C.A.A.F. 2006).
   15   

, 150 (C.A.A.F. 1999).
   16   United States v. Stoneman, 

, 41 (C.A.A.F. 2002).
   17   United States v. Ayala, 

, 300 (C.A.A.F. 1995).
   18   

.
   19   

(C.A.A.F. 2016).
   20   

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              United States v. Chikaka, No. 201400251 (Further Review)


    The Boyce court set forth an analytical framework for courts to use in ap-
plying this standard. First, an appellant must show some evidence that UCI
occurred. 21 This is a low burden, but the showing must consist of more than
“mere speculation.” 22
    Once an appellant presents some evidence of UCI, the burden shifts to the
government to prove beyond a reasonable doubt that “either the predicate
facts proffered by the appellant do not exist, or the facts as presented do not
constitute unlawful command influence.” 23 If the government meets this bur-
den, no further analysis is necessary. 24
    “If the government does not meet its burden of rebutting the allegation at
this initial stage, then the government may next seek to prove beyond a rea-
sonable doubt that the unlawful command influence did not place ‘an intoler-
able 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 the
proceeding.” 25 “A determination the appellant was not personally prejudiced,
or that the prejudice caused by the UCI was later cured, is a significant factor
to which we must give considerable weight when deciding whether the UCI
placed an ‘intolerable strain’ on the public’s perception of the military justice
system.” 26 But such a determination is not dispositive. Rather, we will con-
sider the totality of the evidence in evaluating alleged apparent UCI. 27

B. Application of law to the appellant’s case

   1. Actual UCI
    In this case, the CAAF has already determined that the record contains
some evidence of UCI in the form of the CO’s testimony. This satisfies the
first prong of the tests for actual UCI. The CAAF has also directed us to con-
sider whether the admission of the Commandant’s picture also constitutes
some evidence of UCI. The government argues that the picture is relevant



   21   

(quoting United States v. Salyer, 

, 423 (C.A.A.F. 2013)).
   23   

   25   

   26   

n 5.
   27   

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            United States v. Chikaka, No. 201400251 (Further Review)


aggravation evidence because it “corroborated [the victim’s] testimony that,
though her great grandfather was a ‘large part’ of why she joined the Marine
Corps, she was unable to talk to him about what happened to her.” 28 But it
was not clear to the CAAF—and it is not clear to us—how the picture serves
this purpose. The CAAF found that admission of the picture “raises the spec-
ter of the Government improperly inserting the Commandant into the delib-
eration room.” 29 We find that it constitutes some evidence of UCI.
    This brings us to the second step of the analysis under Biagase in which
the government must demonstrate beyond a reasonable doubt that either the
predicate facts do not exist or that the facts as presented do not constitute
UCI. The government argues that given the procedural posture of this case,
the predicate facts no longer exist. We have already reassessed the sentence,
and accounted for the erroneous admission of the CO’s testimony. This, ac-
cording to the government, “had the practical and legal effect of removing the
testimony from consideration for [the appellant’s] approved sentence,” there-
by eliminating the predicate facts supporting the UCI allegation. 30 We, how-
ever, do not agree that we should accept our initial sentence reassessment as
definitively eliminating the predicate facts. The CO’s testimony was present-
ed and considered by the members, and it represents at least some evidence
of UCI. The CAAF has directed us to use the applicable UCI framework to
determine whether the proceedings were affected by UCI. Our earlier reas-
sessment under United States v. Sales was appropriate to our initial conclu-
sion. But we are not inclined to rely on that reassessment to satisfy Biagase’s
second prong. Additionally, the CAAF directed us to consider whether the
admission of the picture of the victim’s great grandfather with the Comman-
dant prejudiced the appellant by inserting the Commandant into the deliber-
ation room. We did not consider the admission of this picture in our previous
sentence reassessment. We therefore cannot rely entirely on our earlier anal-
ysis to determine that the predicate facts do not exist.
   We are also not convinced beyond a reasonable doubt that the facts as
presented do not constitute UCI. To the contrary, the government introduced
the testimony of the appellant’s commanding officer, who appealed directly to
the members (one of whom was his subordinate) for a harsh sentence. This
constitutes actual UCI. 31 Similarly, the government has not convinced us be-



   28   Government’s Brief at 16.
   

n.5.
   30   Government’s Brief at 14-15.
   31   United States v. Cherry, 

, 5 (C.M.A. 1990).



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            United States v. Chikaka, No. 201400251 (Further Review)


yond a reasonable doubt that the introduction of the Commandant’s picture
did not insert the Commandant into the deliberation room. We will therefore
proceed to the third step of the analysis.
    The third step requires us to determine whether the unlawful command
influence affected the sentence. 32 The burden is on the government to show
beyond a reasonable doubt that the convening authority’s and our modifica-
tions of the appellant’s sentence have cleansed the record of the taint of actu-
al and apparent UCI.
    To reach our conclusion we weigh the nature and severity of the UCI and
the magnitude of our earlier sentence modification. 33 We find that the UCI in
this case had the capacity to do some, but not catastrophic mischief. Address-
ing first the commanding officer’s testimony, we find that the information
presented in the erroneously admitted testimony would have been known to
the members. The panel included a Marine with ten years’ recruiting experi-
ence. That the appellant’s serious offenses, which included abusive sexual
contact, were particularly egregious where the accused is a recruiter and the
victims were young and vulnerable potential recruits would have been appre-
ciated by the panel without the CO’s testimony. The appropriateness of a sen-
tence that supported general deterrence would also have suggested itself
without the CO having requested it, and doubtless the trial counsel would
have argued the same point.
   As for the picture of the Commandant, we find that any UCI associated
with the picture’s admission would have been less substantial than that of
the CO’s testimony. The picture was not accompanied by any text or infor-
mation that could be seen as directing a particular result in this case. The
appellant argues that the picture acted as a conduit to the Commandant’s
“Heritage Tour,” 34 and served to remind the members of expectations the
Commandant expressed at that time. The CAAF, however, has found that the
record contains no evidence that the Heritage Tour has affected this case. We
agree.
   Against the prejudice attributable to UCI we must balance the significant
reduction in the appellant’s sentence we have already awarded. The members
awarded twelve years’ confinement, and the CA reduced that amount to ten.


   32   

.
   33   See United States v. Harvey, 

, 21 (C.A.A.F. 2006).
   34  See United States v. Easterly, No. 201300067, unpublished op. (N-M. Ct. Crim.
App. 31 Jan 2014) (describing the Commandant’s “Heritage Tour” and the related
effort to curb indiscipline in the Marine Corps).



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            United States v. Chikaka, No. 201400251 (Further Review)


In order to remedy an unreasonable multiplication of charges and erroneous-
ly admitted sentencing testimony (including the CO’s testimony), we ap-
proved only five years—a reduction of nearly 60 percent of the appellant’s
awarded sentence.
    Although this represents a substantial reduction, we did not arrive at
that determination by evaluating the sentence under Boyce or any other rele-
vant UCI precedent. Nor did we consider the admission of the Commandant’s
picture as actual or apparent UCI in arriving at a remedy. Although our ini-
tial remedy was not calculated specifically to address UCI, we are convinced
that we can fashion a remedy that ensures beyond a reasonable doubt that
any taint from UCI has been eliminated. We are convinced beyond a reasona-
ble doubt that a sentence extending to total forfeitures, reduction to pay
grade E-1, four years’ confinement, and a dishonorable discharge removes
any possibility that the appellant remains prejudiced by UCI.

   2. Apparent UCI
    We next consider whether the case is affected by apparent UCI using the
framework the CAAF announced in Boyce. The first two steps of the analysis
are identical to those in Biagase. Again, we note that the CAAF has deter-
mined that the record contains some evidence of UCI and that the govern-
ment is not able to rebut this evidence by demonstrating that the predicate
facts do not exist, or that that they do not constitute UCI.
    The third step of the analysis under Boyce requires us to determine
whether the unlawful command influence placed “an intolerable strain” upon
the public’s perception of the military justice system and whether “an objec-
tive disinterested observer, fully informed of all the facts and circumstances,
would not harbor a significant doubt about the fairness of the proceeding.” 35
We have already determined that we can remedy the actual UCI in this case
and eliminated its prejudice to the appellant. While an absence of prejudice
to the appellant does not conclusively demonstrate the absence of apparent
UCI, it is a factor to which we attach considerable weight. 36 We are convinced
beyond a reasonable doubt that the remedy we have provided for actual UCI
would leave a fully informed observer satisfied that the appellant’s proceed-
ings have been fair.




   35   

(quoting 

).
   36   

n. 5.



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         United States v. Chikaka, No. 201400251 (Further Review)


                             III. CONCLUSION

   The findings having been previously approved by the CAAF, we approve
only so much of the sentence as extends to total forfeitures, reduction to pay
grade E-1, four years’ confinement, and a dishonorable discharge are ap-
proved.
   Senior Judge HITESMAN and Judge CRISFIELD concur.


                               FOR THE COURT:




                               RODGER A. DREW, JR.
                               Clerk of Court




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