CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              HAIGHT, HERRING, and WOLFE
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Sergeant SHAUN B. MARCUS
                             United States Army, Appellant

                                      ARMY 20130795

Headquarters, United States Army Maneuver Center of Excellence and Fort Benning
                    Lee Deneke, Military Judge (arraignment)
                    Charles A. Kuhfahl, Military Judge (trial)
             Colonel James F. Garrett, Staff Judge Advocate (pretrial)
     Lieutenant Colonel Charles C. Poche, Staff Judge Advocate (post-trial)


For Appellant: Captain Robert H. Meek, III, JA; C. Ed Massey, Esquire (on brief);
Captain Patrick J. Scudieri, JA; Gary Myers, Esquire (on reply brief and brief on
supplemental assignments of error).

For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Major
Steven J. Collins, JA; Lieutenant Colonel Kirsten M. Dowdy, JA (on brief); Colonel
Mark H. Sydenham, JA; Major Steven J. Collins, JA; Lieutenant Colonel Kirsten M.
Dowdy, JA (on brief).


                                      19 February 2016

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

      A general court-martial composed of officer members convicted appellant,
contrary to his pleas, of abusive sexual contact with a child, two specifications of
indecent liberties with a child, rape, forcible sodomy, and three specifications of
MARCUS — ARMY 20130795

assault consummated by battery, in violation of Articles 120, 125, and 128 1, Uniform
Code of Military Justice, 10 U.S.C. §§ 920, 925, and 928 [hereinafter UCMJ]. The
convening authority approved the adjudged sentence of a dishonorable discharge,
confinement for thirty years, forfeiture of all pay and allowances, and reduction to
the grade of E-1.

        Appellant’s case is now before this court pursuant to Article 66, UCMJ.
Appellant raises five assignments of error, one of which merits discussion but not
relief.

                                      BACKGROUND

       Appellant’s charges all relate to sexual crimes perpetrated against his fourth
wife and 2her underage sister. The government’s theory, which was supported by
testimony as well as evidence gathered in a forensic examination of appellant’s
computer, was that appellant was sexually excited by rape fantasies—fantasies that
became a reality for his wife. In support of its case, the government sought to
introduce under Military Rule of Evidence [hereinafter Mil. R. Evid.] 413 and Mil.
R. Evid. 414 the testimony from other individuals who described similar criminal
acts by appellant. 3 It is the post-trial recantation of one of those Mil. R. Evid. 413
witnesses, appellant’s second wife—Ms. MV, which merits discussion.

       Statements of Ms. MV were introduced into the proceedings at four different
instances.

        During a pretrial motion hearing, the defense and government stipulated that
if called to testify, Ms. MV would state appellant forced her to have anal sex against
her will. Specifically:

                 One time in our marriage he forced me to have anal sex
                 against my will. We had argued that night and when he
                 came back into the room he grabbed me and held me down
                 and tried to penetrate me anally. I told him ‘No’ and tried
                 to move away from him, but he held me down and told me
                 that if I wanted our marriage to work, then I would let him



1
 Appellant was convicted of two charged specifications of assault consummated by
battery and one specification of assault consummated by battery as a lesser included
offense of a charged aggravated assault.
2
    Corrected.
3
    These acts predated appellant’s entry into the Army.


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             do it. I didn’t want to, and he forced his penis into my
             anus.

       The stipulation also included expected testimony that the two had “rough”
sex, that appellant would ignore her use of the “safe word,” punched her, and forced
her to have vaginal sex.

      Ms. MV was also called by the defense to testify in a closed session in
support of the defense’s Mil. R. Evid. 412 motion. Ms. MV testified during cross-
examination about sexual intercourse that involved slapping, hair pulling, choking,
and the initial use of a “safe word.” She also testified that the conduct devolved into
nonconsensual punching, choking to the point of blacking out, forcible anal sex, and
appellant telling her that she was no longer allowed to use the safe word because she
“used it too much.”

       At trial, Ms. MV was called by the government. After testifying to
foundational questions, including that she was married to appellant from 2001-2002,
her entire testimony on direct was as follows:

             Q: Directing your attention to 2001, when you were
             married to Sergeant Marcus, did there come a time when
             Sergeant Marcus acted inappropriately with you sexually?

             A: Yes.

             Q: Tell the Court what he did.

             A: Towards the end of our marriage [appellant] had come
             back from Germany to visit and we were having problems.
             The last night there we went to a hotel and stayed in a
             hotel. It was supposed to be romantic and work on our
             marriage and he wanted to have anal sex and I said “no.”
             He said, “Well, if you want the marriage to work you’re
             going to do it.” And I told him it hurt and I didn’t want to
             do it anymore and he put my head down on the bed and
             told me to shut up, and I just finally gave in.

             Q: When you told [appellant] that it hurt, at that moment,
             where was his penis?

             A: In me.

             Q: And did he remove his penis after you said that?




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             A: No.

             Q: What did he do?

             A: He kept going.

      On cross-examination by the defense, Ms. MV was even more emphatic that
appellant had assaulted her.

             Q: When you made the statement a few moments ago . . .
             “I told him it hurt, I didn’t want to do it anymore,” do you
             remember stating that; is that right?

             A: Yes.

             Q: Is that indicative that at some point during that
             incident that you were engaging in consensual anal sex
             with him on that day?

             A: No.

             Q: Your testimony is that no aspect of that was
             consensual, is that right?

             A: Yes.

        After trial, Ms. MV signed two affidavits purporting to recant her testimony at
trial, alleging that her testimony against appellant was improperly induced through
threats and promises by government trial counsel. 4 These two affidavits raise the
issue of whether appellant is entitled to a new trial based on either new evidence or
because prosecutorial misconduct led to a fraud upon the court.

                                    DISCUSSION

       Although not phrased as such by appellant, we believe the proper lens through
which to resolve his claims are to treat them as a petition for a new trial under
Article 73, UCMJ, and R.C.M. 1210. The articles of the UCMJ provide several
paths to this court:




4
 The first affidavit was submitted as part of the defense submissions under Rule for
Courts-Martial [hereinafter R.C.M.] 1105. We granted a motion to attach the second
affidavit (as a defense appellate exhibit) to appellant’s reply brief.


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MARCUS — ARMY 20130795

             Article 62 addresses interlocutory appeals by the
             government;

             Article 6b, in addition to the All Writs Act (28 U.S.C. §
             1651), provides for this court to consider certain other
             writ petitions;

             Article 66 provides for automatic review of the findings
             and sentence of qualifying court-martial convictions;

             Article 69 allows for review of non-qualifying convictions
             when sent to the court by The Judge Advocate General of
             a respective service; and

             Article 73 provides for petitions for new trial based on
             new evidence or allegations of fraud on the court-marital.

       In the case of a petition for a new trial, “[i]f the accused’s case is pending
before a Court of Criminal Appeals . . . the Judge Advocate General shall refer the
petition to the appropriate court for action.” UCMJ art. 73.

        Appellant and his counsel were unaware of MV’s recantations and allegations
until after the sentence was announced and court was adjourned. Appellant’s new
evidence, which was never litigated or subject to adversarial testing, is not a direct
attack on appellant’s conviction. Appellant, for example, does not allege the
military judge committed error, plain or otherwise. In other words, this is unlike
cases where the evidence of prosecutorial misconduct is contained within the record
of trial. See, e.g., United States v. Frey, 

(C.A.A.F. 2014) (trial counsel’s
improper sentencing argument); United States v. Hornback, 

(C.A.A.F.
2014) (trial counsel’s repeated improper questions throughout trial eliciting
objectionable testimony from multiple witnesses).

      Therefore, we find that Article 73, UCMJ, provides the mechanism for us to
consider evidence outside the record and initially address appellant’s claims. 5 We
believe our approach is consistent with the structure of the UCMJ and the nature of
appellant’s assigned errors.

      The contrary view, that we should address this matter as a direct attack on
appellant’s conviction under Article 66, UCMJ, would be problematic. First, it


5
  Our focus here is identifying the proper means to initially address the assigned
error. In a case where Article 73, UCMJ, provides no remedy, we will nonetheless
still need to determine whether the findings “should be approved” under Article
66(c).


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would be difficult to draw any clear boundary between when an allegation of new
evidence or fraud on the court-martial should be initially addressed under Article 66
or Article 73. Second, by their nature, allegations such as appellant’s were not
preserved at trial. By considering this matter under Article 73, we avoid applying
the unforgiving strictures of a plain error analysis to appellant’s case. Put
differently, in general, Article 73 allows redress for matters involving new evidence
which the appellant could not have raised at trial and for which evidence outside of
the record must be considered.

      Article 73, UCMJ, allows an accused to petition for a new trial “on the
grounds of newly discovered evidence or fraud on the court.” Regarding new
evidence, R.C.M. 1210(f)(2) provides:

             A new trial shall not be granted on the grounds of newly
             discovered evidence unless the petition shows that:

             (A) The evidence was discovered after the trial;

             (B) The evidence is not such that it would have been
             discovered by the petitioner at the time of trial in the
             exercise of due diligence; and

             (C) The newly discovered evidence, if considered by a
             court-martial in the light of all other pertinent evidence,
             would probably produce a substantially more favorable
             result for the accused.

       Regarding fraud on the court-martial, R.C.M. 1210(f)(3) provides that “[n]o
fraud on the court-martial warrants a new trial unless it had a substantial
contributing effect on a finding of guilty or the sentence adjudged.”

       “[Rule for Courts-Martial] 1210 is generally consistent with [Federal Rule of
Criminal Procedure] 33.” United States v. Rios, 

, 267 (C.A.A.F. 1998).
Our superior court has broadly adopted standards applicable to federal courts in
reviewing petitions for a new trial. 

(“Congress intended that
military practice with respect to petitions for new trial mirror practice in federal
civilian courts.”). Petitions for new trial are generally disfavored. 

(internal quotation marks and citation omitted).

       In Rios, our superior court stated the courts of criminal appeals are “free to
exercise . . . [our] factfinding powers” and we may weigh the “testimony at trial
against the post-trial evidence to determine which is credible.” 

-68
(internal quotation marks and citations omitted). However, later that same year in
United States v. Brooks, our superior court clarified that “[t]he reviewing court does
not determine whether the proffered evidence is true; nor does it determine the


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MARCUS — ARMY 20130795

historical facts. It merely decides if the evidence is sufficiently believable to make
a more favorable result probable.” 

, 69 (C.A.A.F. 1998); see also United
States v. Cuento, 

, 112-13 (C.A.A.F. 2004). This latter interpretation in
Brooks is consistent with the structure of the code, as our factfinding powers are
contained in Article 66(c), not Article 73. 6

        Both Rios and Brooks agree that petitions for new trial are “generally . . .
decided upon affidavits without evidentiary hearings.” 7 

; 

(quotation marks and citations omitted). Military practice, like federal
civilian practice, makes an evidentiary hearing discretionary. Rule for Courts-
Martial 1210(g)(1) provides: “The authority considering the petition may cause such
additional investigation to be made and such additional information to be secured as
that authority believes appropriate.” In short, in considering a petition for a new
trial, “the determination of sufficient grounds for granting a petition for new trial in
the military rests within the [sound] discretion of the authority considering . . . [that]
petition.” 

(alterations in original) (internal quotation marks and
citations omitted).

       We do not believe an evidentiary hearing is required to resolve this matter.
Ms. MV’s recantation, when considered in the light of all other pertinent evidence,
would not “probably produce a substantially more favorable result for the accused.”
R.C.M. 1210(f)(2)(c). Ms. MV’s allegations of her fraud on the court-martial, even
if taken as true, did not have a substantially contributing effect on a finding of
guilty. R.C.M. 1210(f)(2)(C); R.C.M. 1210(f)(3). In other words, appellant has
failed to meet his “heavy burden.” United States v. 

.
However, some discussion is required to address the issues raised by Ms. MV’s
affidavits, and we will address each in turn.


6
  Similarly, our superior court has determined that our factfinding powers do not
extend to collateral attacks on the conviction. The statutory language of Article
66(c) “clearly indicates that Congress intended a Court of Criminal Appeals to act as
factfinder in an appellate-review capacity and not in the first instance as a trial
court. This unusual appellate-court-factfinding power is not unlimited in scope but
is expressly couched in terms of a trial court’s findings of guilty and its prior
consideration of the evidence.” United States v. Ginn, 

, 242 (C.A.A.F.
1997).
7
  We do not find our approach in this case to be in conflict with Ginn, 

.
First, both Rios and Brooks were decided after Ginn. Second, Ginn involved the
more common claim of ineffective assistance of counsel—a collateral attack on a
conviction—a circumstance where conflicting affidavits and the necessity for a
factfinding hearing is far more likely. 

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                            A. Fraud on the Court-Martial

                                    1. Coerced Testimony

       In Ms. MV’s first affidavit, she alleges “[t]he prosecutor manipulated me and
had me believing that if I did not go and testify to what she wanted me to say, that
she would contact my husband’s command and go after myself and my family.”
In response to her initial affidavit, we granted the government’s motion to submit an
affidavit from the trial counsel as a government appellate exhibit. In the affidavit,
the trial counsel states that Ms. MV was a reluctant witness but was emphatic that
Ms. MV was repeatedly told that she must testify truthfully. 8

       In Ms. MV’s second affidavit, which specifically addresses the affidavit of
the trial counsel, Ms. MV claims she “was manipulated into testifying against
[appellant].” 9 Further, Ms. MV does not claim the government told her to testify
falsely. Rather, Ms. MV makes clear that the “manipulation” was that the trial
counsel discussed consequences with her if she refused to testify at all. She states
that after multiple calls from the prosecutors, “I was feeling scared that I could not
refuse to testify.” After telling the trial counsel she did not want to testify, she
claims a trial counsel told her “if you do not come we will subpoena you, if you
don’t follow the subpoena, you will go to jail and you might lose your kids.”
Finally, in regards to contacting her husband’s command, she clarifies that she “was
told that if I didn’t come the prosecution would call my husband’s unit.”

       Ms. MV’s second affidavit (which is longer and more specific) clarifies any
ambiguity within the first affidavit and solidifies that this is not a case in which Ms.
MV was coerced into testifying falsely. Rather, Ms. MV’s complaint is that she was
coerced into testifying at all. It is also clear from the affidavit that Ms. MV believes
that she had a legal choice as to whether she testified against appellant. Of course,
if properly subpoenaed, Ms. MV was not free to refuse to testify. See UCMJ art. 47.
A witness duly subpoenaed who unlawfully refuses to testify may be “fined,



8
 We mention the trial counsel’s affidavit only to explain how Ms. MV, in her
second affidavit, specifically responds to the trial counsel.
9
  Ms. MV also claimed in her second affidavit that the trial counsel told her not to
speak with appellant or his lawyer. If true, this would be of concern. See UCMJ art.
46. (“The trial counsel, the defense counsel, and the court-martial shall have equal
opportunity to obtain witnesses and other evidence . . . .”). However, appellant did
not complain of this specific issue at trial or on appeal. Additionally, it is clear that
whatever the trial counsel may have said, the trial defense counsel was able to
communicate with Ms. MV sufficiently that he could sign a stipulation of expected
testimony and had the opportunity to examine Ms. MV prior to trial.


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MARCUS — ARMY 20130795

imprisoned, or both.” UCMJ art 47(b). While Ms. MV may have felt compelled to
testify, that is the very nature of compulsory process.

      Accordingly, we do not find that there was a fraud on the court-martial that
“had a substantial contributing effect on a finding of guilty or the sentence.” R.C.M
1210(f)(3).

                              2. Scope of Ms. MV’s Testimony

       Ms. MV’s affidavits also claim the trial counsel promised her that she would
be able to testify that she still loves appellant and that she consented to all sexual
acts. She believes the government broke that promise and states that she feels
“betrayed” by the prosecution. She is correct in part. Neither party asked Ms. MV
during the trial whether she still loved appellant. However, both counsel asked
questions that elicited whether the sexual act between her and appellant that was the
subject of her testimony had been consensual.

       The government asked Ms. MV whether appellant had ever acted
“inappropriately with you sexually?” After she answered in the affirmative, the
government posed an open-ended question, asking her to “[t]ell the Court what he
did.” In response, Ms. MV then testified that she “told [appellant] that it hurt and I
didn’t want to do it anymore and he just put my head down on the bed and told me to
shut up, and I just finally gave in.”

       On cross-examination, the defense counsel unsuccessfully attempted to elicit
testimony from Ms. MV that the sexual encounter had begun consensually. Ms. MV
specifically denied that any part of the encounter had been consensual. The defense
counsel attempted to clarify the question, asking, “Your testimony is that no aspect
of that was consensual, is that right?” Ms. MV agreed with the counsel’s
characterization of her testimony.

       In other words, Ms. MV’s claim that she was not allowed to testify as to
whether the sexual act with appellant was consensual is compellingly disproven by
the record. Ms. MV did have the opportunity to testify as to whether the act was
consensual; and her testimony clearly stated that it was not.

       As to Ms. MV’s allegation that the government broke its promise that she
could testify that she still loved appellant, we note as an initial matter that it is the
counsel who determines what questions should be asked, not the witness. However,
assuming that such a promise was made, the breach of that promise did not
constitute a fraud upon the court-martial. Neither the promise nor its breach
impeded the defense’s cross-examination or mislead the factfinder. As to prejudice,
given Ms. MV’s inculpatory testimony, any testimony that Ms. MV still loved
appellant would have had the effect of bolstering her credibility by demonstrating



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MARCUS — ARMY 20130795

that she was testifying against someone she nevertheless loved; perhaps improperly
as the defense did not attack her motives or infer that she was biased. See Mil. R.
Evid. 604(a).

                                    B. New Evidence

                                1. Post-Trial Recantation

      Apart from the issue of whether there was a fraud on the court-martial, we
must still address whether Ms. MV’s post-trial affidavits constitute new evidence
that warrants a new trial.

       In her first affidavit, Ms. MV “recants” her trial testimony, stating “I never
said no at any time” and “I agreed to everything we ever did.” However, in her first
affidavit Ms. MV also stated—referencing the assault that was the subject of her
testimony—“I told him to stop and then just allowed him to continue what he was
doing.”

       In her second affidavit, Ms. MV clearly states that appellant “never forced me
to have anal or any other type of sex.” Her second affidavit, prepared for this
appellate review, does not attempt to give any explanation as to why her testimony
has changed since trial. At points, the differences between her trial testimony and
affidavits could be explained by an evolving sense or understanding of what is meant
by the terms “force” and “consent.” 10 At other points, however, the differences are
irreconcilable.

       We are not required, however, to resolve this matter decisively. Our role is to
“merely decide[] if the evidence is sufficiently believable to make a more favorable
result probable.” 

. We find that Ms. MV’s affidavits so lack
credibility as to make any change in the court-martial findings improbable. As
discussed above, her claim that she was not allowed to testify as to whether she
consented to appellant’s assault is completely at odds with her actual testimony
where she was provided that very opportunity. Her broad claim that appellant never
forced her to have any type of sex is contradicted by her detailed testimony at both
the Mil. R. Evid. 412 hearing and the trial that appellant repeatedly used violence to
obtain sex. Additionally, Ms. MV’s credibility is substantially undermined by her


10
   For example, at trial, when describing an event she characterized as
nonconsensual, she testified, “I told him it hurt and I didn’t want to do it anymore . .
. and I just finally gave in.” In her first affidavit’s description of that same event,
an event she describes as consensual, she states, “I told him to stop and then just
allowed him to continue what he was doing.” The factual description of this event is
relatively consistent; it is her characterization of the event that changed
dramatically.


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clear (and candid) present bias in favor of appellant. In her first affidavit, Ms. MV
states that in regards to appellant “I have loved him for 18 years and would do
anything in my power for him!” and “I do not believe he belongs in prison.”
Furthermore, she demonstrates a clear animus towards the charged victim, stating,
“[s]he knew how he was in the bedroom before she married him.”

                        2. Probability of More Favorable Result

       Finally, even if we were to find the recantations of Ms. MV to possess some
credibility, the importance of her testimony must be considered within the scope of
the entire trial. Appellant was not charged with any offense against Ms. MV, and
Ms. MV provided no direct testimony on the charged offenses. While her testimony,
admitted under Mil. R. Evid. 413 is not inconsequential, the government’s direct
exam (to include introducing her to the panel and its foundational questions)
amounted to less than two pages of an 842-page record. In other words, the
recantations are unlikely to produce a “substantially more favorable result” for
appellant. R.C.M. 1210(f)(2)(C). This case is therefore unlike Cuento, which
involved the recantation of a charged victim in a case where there was no
corroborating 

. In Cuento, our superior court found that the
court of criminal appeals erred in not ordering a factfinding hearing. 

States v. Giambra, 

, 335 (C.M.A. 1991)) (“‘When the alleged
perjurer is the prosecutrix herself,’ we remain disinclined to burden Appellant with
mechanical application of a rigorous standard. Under the unique circumstances of
this case, including the lack of any corroborating physical evidence . . . we find that
the weight of [the] recantation cannot adequately be measured without a DuBay
hearing before a military judge       . . . .”).

                                   CONCLUSION

      The findings and sentence are AFFIRMED.

      Senior Judge HAIGHT and Judge HERRING concur.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




                                        MALCOLM H.
                                        MALCOLM     H. SQUIRES,
                                                       SQUIRES, JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




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