United States v. Merritt

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman Basic MICHAEL L. MERRITT
United States Air Force

ACM 38819

2 November 2016

Sentence adjudged 4 March 2015 by GCM convened at F.E. Warren AFB,
Wyoming. Military Judge: Mark W. Milam (sitting alone).

Approved Sentence: Dishonorable discharge, confinement for 9 years, and
forfeiture of all pay and allowances.

Appellate Counsel for the Appellant: Major Jeffrey A. Davis.

Appellate Counsel for the United States: Captain Collin F. Delany and
Gerald R. Bruce, Esquire.

Before

MAYBERRY, SPERANZA, and JOHNSON
Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.

SPERANZA, Judge:

Consistent with Appellant’s pleas pursuant to a pretrial agreement, a military judge
sitting as a general court-martial found Appellant guilty of two specifications of aggravated
sexual contact with a child who had not attained the age of 12 years in violation of Article
120, UCMJ, 10 U.S.C. § 120. 1 In pertinent part, Appellant was convicted of intentionally
touching AS’s genitalia and MF’s inner thigh with an intent to gratify his sexual desire.
The military judge sentenced Appellant to a dishonorable discharge, 10 years of

1
The specifications alleged misconduct occurring prior to 27 June 2012.
confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1. In
accordance with the pretrial agreement, the convening authority only approved nine years
of confinement but approved the remainder of the adjudged sentence.

On appeal, Appellant raises six errors pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). 2 We address four of his complaints. We have considered the
remainder but find them without merit. See United States v. Matias, 25 M.J. 356, 363
(C.M.A. 1987).

Background

At a previous court-martial, a military judge convicted Appellant, consistent with
his pleas pursuant to a pretrial agreement, of committing multiple sexual offenses,
including sodomy, over a number of years against his minor stepdaughter, CRH; assaulting
MLW, a child under the age of 16 years, by unlawfully kissing her on the mouth;
kidnapping KNB, a child under age the of 16 years; and, attempting to kidnap a KB, another
child under the age of 16 years. The military judge sentenced Appellant to a dishonorable
discharge, 50 years of confinement, forfeiture of all pay and allowances, and reduction to
the grade of E-1. Per the terms of that pretrial agreement, the convening authority only
approved 25 years of confinement but approved the remainder of the sentence as adjudged.

Appellant’s previous court-martial received media attention. The Air Force Office
of Special Investigations (AFOSI) opened a developmental case file to manage additional
allegations of abuse that might be generated by the public’s awareness of Appellant’s
misconduct. Consequently, AS and MF separately disclosed Appellant’s misconduct.
Their allegations resulted in further investigation and the specifications charged in this
case. AS and MF were friends of CRH when Appellant was stationed in Germany.

Additional facts necessary to resolve the assignments of error are included below.

2
Appellant presented the following issues:
I. Whether the military judge erred by admitting the stipulation of fact from
Appellant’s previous court-martial during the sentencing phase of this trial.
II. Whether improper evidence was admitted during sentencing by the
government’s expert witness.
III. Whether trial counsel made improper arguments during sentencing argument.
IV. Whether actual and apparent unlawful command influence so permeated
Appellant’s case that it was impossible for Appellant to receive fairness in the
pretrial, trial, and post-trial processing of his case.
V. Whether the government engaged in unlawful command influence and
prosecutorial misconduct by interfering with Appellant’s access to witnesses.
VI. Whether the military judge violated Appellant’s rights pursuant to his pretrial
agreement by questioning him about a matter that was waived by the pretrial
agreement, and also allowing the government to argue that Appellant’s allegation,
that he was not raising, was baseless.

2 ACM 38819
 Admission of Stipulation of Fact from Appellant’s Previous Court-Martial

At his prior court-martial, Appellant entered into a stipulation of fact that detailed
the circumstances surrounding the charges and specifications to which he pleaded guilty.
The Government moved to admit the prior stipulation of fact during the sentencing
proceedings in this trial as a matter in aggravation under Rule for Courts-Martial (R.C.M.)
1001(b)(4) and Military Rule of Evidence (Mil. R. Evid.) 414. The Defense objected under
Mil. R. Evid. 403, claiming the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice. The Defense also argued that the stipulation
of fact was needlessly cumulative of the other evidence pertaining to Appellant’s previous
court-martial convictions. Moreover, the Defense asserted that portions of the stipulation
of fact did not consist of evidence of other offenses of child molestation under Mil. R. Evid.
414.

The military judge ruled that the stipulation of fact was admissible, but that he would
only consider those portions of the stipulation related to the child molestation offenses
Appellant committed upon CRH. 3 The military judge articulated on the record the facts
and law upon which he based his decision. In his findings of fact, the military judge found
the following: Appellant was previously convicted of child molestation offenses
contemplated by Mil. R. Evid. 414; Appellant’s previous convictions were based, in part,
on the stipulation of fact; the stipulation was a “rendition” of the facts related to the charges
in the previous court-martial; the stipulation was straightforward and “seemingly devoid
of emotion”; and, the stipulation was not cumulative of the other evidence related to
Appellant’s previous court-martial. The military judge applied Mil. R. Evid. 414, Mil. R.
Evid. 403, and relevant case law 4 in analyzing the facts. The military judge, in general,
concluded that the stipulation “essentially is just the facts as they occurred” and what
Appellant pleaded guilty to at his prior court-martial. In pertinent part, the military judge
maintained that the evidence of other offenses of child molestation contained in the offered
stipulation of fact, specifically the paragraphs related to offenses committed upon CRH,
was permissible evidence in aggravation at sentencing. The military judge also found that
the offered stipulation would not confuse the issues in this case, and that he could “create
a just sentence” for Appellant by separating “passion” and applying “the facts and
circumstances of this case.” The military judge once again assured the parties that he would
be “specifically considering . . . the acts of child molestation against [CRH].” Accordingly,
the military judge explicitly addressed Mil. R. Evid. 403 and did not find that the evidence’s
“probative value was substantially outweighed by danger of unfair prejudice or confusion
or a waste of time.”

We review a military judge’s decision to admit or exclude evidence for an abuse of
discretion. United States v. Thompson, 63 M.J. 228, 230 (C.A.A.F. 2006). We will affirm
3
The military judge explained that he would only consider paragraphs 3 through 34 of Prosecution Exhibit 18.
4
The military judge stated, “M.R.E. 414 evidence is permissible in sentencing and I rely on the case cited by the
government for that proposition, United States v. Tanner, 63 M.J. 445.”

3 ACM 38819
a military judge’s findings of fact unless the findings are clearly erroneous, and we review
conclusions of law therefrom de novo. United States v. Rader, 65 M.J. 30, 32 (C.A.A.F.
2007). The evidence is considered “‘in the light most favorable to the’ prevailing party.”
United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996). An abuse of discretion occurs
when (1) findings of fact are clearly erroneous, (2) an erroneous view of the law guides a
decision, or (3) the decision is not one of the possible outcomes arising from the facts and
law. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008); see also United States
v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).

Mil. R. Evid. 414(a) provides: “In a court-martial in which the accused is charged
with an offense of child molestation, evidence of the accused’s commission of one or more
offenses of child molestation is admissible and may be considered for its bearing on any
matter to which it is relevant.”

As the Court of Appeals for the Armed Forces has acknowledged, Mil. R. Evid. 414
“establishes a presumption in favor of admissibility of evidence of prior similar crimes in
order to show predisposition to commit the designated crimes.” United States v. Tanner,
63 M.J. 445, 448 (C.A.A.F. 2006) (citing United States v. Wright, 53 M.J. 476, 482–83
(C.A.A.F. 2000)). “R.C.M. 1001 constitutes the gate through which such matters must
pass during sentencing.” Id.

R.C.M. 1001(b)(4) authorizes the prosecution to “present evidence as to any
aggravating circumstances directly relating to or resulting from the offenses of which the
accused has been found guilty.”

In a child molestation case, “evidence of a prior act of child molestation ‘directly
relat[es] to’ the offense of which the accused has been found guilty and is therefore relevant
during sentencing under R.C.M. 1001(b)(4).” Tanner, 63 M.J. at 449.

Evidence offered at sentencing under Mil. R. Evid. 414 is still subject to a balancing
test pursuant to Mil. R. Evid. 403, under which relevant evidence may be excluded if its
“probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the members.”

Plainly, the military judge did not abuse his discretion when he admitted the
stipulation of fact from Appellant’s previous court-martial over the Defense’s objection.
The military judge’s findings were not erroneous, he properly considered the relevant law,
and his ruling was wholly supported by the facts and law applicable to this matter. The
previous stipulation of fact contained clear evidence of Appellant’s commission of other
offenses of child molestation. Specifically, the paragraphs considered by the military judge
detailed Appellant’s extensive abuse of his stepdaughter, CRH. In this case, Appellant was
once again facing charges involving offenses of child molestation. Evidence of Appellant’s
prior offenses of child molestation directly related to the offenses to which he pleaded

4 ACM 38819
guilty. Therefore, the previous stipulation of fact was properly admitted as evidence in
aggravation at sentencing. Moreover, the military judge properly weighed the probative
value of such evidence against any danger of unfair prejudice.

Improper Sentencing Argument

Pursuant to his pretrial agreement in this case, Appellant entered into a stipulation
of fact with the Government. Accordingly, the Government and the Defense stipulated,
“with the express consent of [Appellant], that the . . . facts are true and admissible for all
purposes, to include any findings and sentencing proceedings.” In general, the stipulation
consisted of facts related to the offenses in this case as well as a section of “Additional
Facts” that provided details of Appellant’s previous court-martial results, statements
Appellant made during the investigation into the previous misconduct, the investigation
into Appellant’s offenses in this case, and statements Appellant made to investigators in
this case. 5 In the stipulation of fact, Appellant also stipulated to the admissibility of 16
prosecution exhibits “for all purposes in the findings and sentencing portions of this court-
martial.” One of these prosecution exhibits was a transcript of Appellant’s oral unsworn
statement from his previous court-martial in which he declared, in pertinent part, “I am
completely committed to getting every bit of treatment I can, including chemical castration,
if available.”

At trial, the military judge conducted a thorough inquiry with Appellant about the
purpose, effect, and uses of the stipulation of fact. Appellant understood that the facts
contained within the stipulation, if admitted into evidence, would be uncontroverted facts
in this case. Appellant understood and agreed that the stipulation would be used by the
military judge to reach findings and determine an appropriate sentence.

The military judge discussed every paragraph of the stipulation of fact with
Appellant. Appellant agreed that each paragraph and subparagraph was true and accurate.
Appellant also agreed to the admissibility of the prosecution exhibits listed within the
stipulation of fact. There being no objection, the military judge admitted the stipulation of
fact into evidence.

In addressing the strength of Appellant’s “urges” during his sentencing argument,
trial counsel asserted:

Now, it is interesting because Airman Basic Merritt even
suggested his own chemical castration and that is in the
evidence before Your Honor. Now, I cannot comment and do
not know, we cannot know, whether that suggestion was
5
During his interview with investigators in this case, Appellant stated substantially the following: that he “stood [his]
ground on denial” during initial interviews; he was sorry that investigators had to “listen to a liar”; he “lied through
[his] teeth during the other interview”; he knew AS, but did not sexually abuse her; and he did not know MF.

5 ACM 38819
 sincere or insincere. But, just looking at it logically, just
looking at it logically, if it was insincere, then it is more in a
long pattern of deception and lies.

If it was sincere, on the other hand, just logically, if it was
sincere, it speaks volumes about the strength of those urges, the
uncontrollability of those urges that he would suggest his own
chemical castration. How strong must those urges be if that is
the suggestion, if that suggestion is sincere? What does that
say about Airman Basic Merritt’s risk to reoffend?

Trial counsel later recounted aggravating factors, arguing:

Then, there are the aggravating factors in this case, and there
are many. There are many aggravating factors, which again
cause trial counsel to recommend at least 15 years of
confinement. And, all we have to do is to peruse the evidence.
The evidence speaks volumes; more than one victim, 24 past
convictions, selection and age of those victims, sodomizing his
stepdaughter over and over again. How does that bode for his
risk? Lying about his deviance over and over again; “I don't
know [MF]. I never touched [AS];” but, also the blatant and
risky behavior.

Trial defense counsel did not object to any of trial counsel’s sentencing argument
or rebuttal argument.

On appeal, Appellant claims that his “offer to undergo chemical castration . . . was
not part of [his] second court-martial.” Appellant acknowledges that his previous unsworn
statement was incorporated into the stipulation of fact in this case. Nonetheless, he
complains that such information was somehow irrelevant, thus making trial counsel’s
argument without evidentiary support. Appellant raises a similar concern with the second
portion of trial counsel’s argument. Appellant generally contends that evidence related to
his previous offenses was not relevant. Moreover, Appellant argues that evidence
indicating he was untruthful to investigators in this case, even though he stipulated to those
facts and agreed to the stipulation’s uses, is evidence of uncharged misconduct and not
relevant evidence in aggravation.

Because there was no objection at trial, we review the propriety of trial counsel's
argument for plain error. United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013). To
prevail under a plain error analysis, Appellant must show “(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a substantial right.” United States

6 ACM 38819
v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007) (quoting United States v. Kho, 54 M.J. 63,
65 (C.A.A.F. 2000)).

Trial counsel presented the military judge with an appropriate argument based on
properly admitted, relevant evidence and reasonable inferences derived therefrom.
Appellant has failed to show that trial counsel’s argument was in fact error, let alone plain
or obvious error. 6 Having considered the content, and indeed the context, of trial counsel’s
closing argument, we find no error that materially prejudiced Appellant. See United States
v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000).

Unlawful Command Influence

On appeal and for the first time, Appellant claims that this second court-martial was
“so permeated with actual and apparent unlawful command influence that it was impossible
for Appellant to receive a fair trial.” Appellant accuses the Government of processing and
prosecuting his second court-martial “in a vindictive manner . . . in an effort to secure
additional confinement time that [it] lost as a result of the previous pretrial agreement for
Appellant’s first court-martial.” Appellant generally complains that the Government,
through repeated attempts, turned his second court-martial into a continuation of his first
court-martial. In support of this allegation, Appellant highlights the following: the same
legal office prosecuted both courts-martial; the same senior trial counsel prosecuted both
courts-martial; the same expert witness testified in both courts-martial; the same
commander preferred the charges although Appellant had been reassigned; and the same
convening authority referred the charges although Appellant had been reassigned to a new
command. Additionally, Appellant maintains that “the [G]overnment significantly
overcharged the case and was forced to withdraw and dismiss six specification under two
charges.” Accordingly, Appellant requests his convictions and sentence be set aside.

Article 37(a), UCMJ, 10 U.S.C. § 837(a), states that “[n]o person subject to [the
UCMJ] may attempt to coerce or, by any unauthorized means, influence the action of a
court-martial . . . or any member thereof, in reaching the findings or sentence in any case .
. . .” The mere appearance of unlawful command influence may be “as devastating to the
military justice system as the actual manipulation of any given trial.” United States v.
Ayers, 54 M.J. 85, 94–95 (C.A.A.F. 2000) (quoting United States v. Allen, 33 M.J. 209,
212 (C.M.A. 1991)).

6
Even if trial counsel’s argument was in error, Appellant's case was tried before a military judge sitting alone, and
“[m]ilitary judges are presumed to know the law and to follow it absent clear evidence to the contrary.” United States
v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) (citing United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)).
The Court of Appeals for the Armed Forces has also recognized, “[a]s part of this presumption we further presume
that the military judge is able to distinguish between proper and improper sentencing arguments.” Id.; see also United
States v. Bridges, 66 M.J. 246, 248 (C.A.A.F. 2008) (“As the sentencing authority, a military judge is presumed to
know the law and apply it correctly absent clear evidence to the contrary.”).

7 ACM 38819
 We review allegations of unlawful command influence de novo. United States v.
Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013). “On appeal, the accused bears the initial burden
of raising unlawful command influence. Appellant must show: (1) facts, which if true,
constitute unlawful command influence; (2) that the proceedings were unfair; and (3) that
the unlawful command influence was the cause of the unfairness.” Id. (citing United States
v. Richter, 51 M.J. 213, 224 (C.A.A.F. 1999)). The initial burden of showing potential
unlawful command influence is low, but is more than mere allegation or speculation.
United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002). Appellant must initially
present “some evidence” of unlawful command influence. Id. (quoting United States v.
Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999)).

After an issue of unlawful command influence is raised by some evidence, the
burden shifts to the Government to rebut an allegation by persuading the court 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 influence will not affect the
findings or sentence. Biagase, 50 M.J. at 151.

Indeed, many of the same organizations and individuals participated in both courts-
martial; however, such participation, standing alone, is not evidence of unlawful command
influence. Moreover, the Article 32 investigating officer recommended four specifications
under the Article 120 charge and two specifications under an Article 128 charge not be
referred to a court-martial. Appellant’s former commander—the same accuser who
preferred charges in the first court-martial—agreed with the investigating officer and
recommended dismissal of the six aforementioned specifications. The forwarding special
court-martial convening authority recommended dismissal of the six specifications. The
convening authority’s staff judge advocate recommended dismissal of the six
specifications. The convening authority dismissed the six specifications. These
recommendations and actions are not evidence of a vindictive prosecution intent on further
punishing Appellant. Accordingly, Appellant has offered no evidence, apart from his own
allegations and speculation, that these facts constituted unlawful command influence, or
that the proceedings of his second court-martial, during which he pleaded guilty pursuant
to a pretrial agreement before a military judge alone, was unfair. We further find that
Appellant failed to raise some evidence that would cause an objective, disinterested
observed, fully informed of the facts and circumstances in this case, to harbor a significant
doubt about the fairness of these proceedings.

Even if we found Appellant met his initial burden through these allegations, we are
nonetheless convinced beyond a reasonable doubt that the facts identified by Appellant do
not constitute unlawful command influence. Likewise, we are convinced beyond a
reasonable doubt that any possible unlawful command influence did not affect the pretrial
agreement, Appellant’s pleas of guilty, the military judge’s findings consistent with
Appellant’s pleas, or the sentence that was limited by the terms of the pretrial agreement.

8 ACM 38819
An objective, disinterested observer, fully informed of all the facts and circumstances,
would harbor no significant doubt about the fairness of Appellant’s proceedings.

Prosecutorial Misconduct

Appellant accuses the Government of “misleading the [investigating officer]
regarding the availability of the victims to testify at the Article 32 hearing, 7 when the
Government stated they were not available, prior to the Government even inviting the
victims to testify at the Article 32 hearing.” Appellant claims that this “misconduct” denied
him “equal access to the witnesses” after the investigating officer found the civilian
witnesses unavailable to testify.

On 17 October 2014, in an email discussing hearing logistics, a Government
representative advised trial defense counsel, as follows:

Witnesses: I want to make sure you are aware that the
Government will not be calling either victim to testify at the
Art. 32. If you want to request them, please let us know ASAP
so that we can run this through the [investigating officer] in
advance. In the event he determines that they are reasonable
[sic] available, we will need adequate time to process travel
orders, etc.

Trial defense counsel responded less than two hours later, as follows:

As to witnesses, the Defense does not, at this time, have any
witnesses it wishes the Government to procure to testify on
behalf of the Defense. We appreciate you thinking about travel
for Defense witnesses and understand that you would need
time to process any travel request. If we decide to request any
Defense witness we will attempt to provide those named
witnesses to you in a timely fashion to allow your office to
complete the paperwork and travel arrangements. We will not
opine as to what witnesses the government should or should
not call in their own case.

In this email, trial defense counsel also requested a witness list from the
Government. Within two hours, the Government informed trial defense counsel that the
Government was only calling two agents who investigated the offenses in this case.

7
Rule for Courts-Martial (R.C.M.) 405 applied as modified by Executive Order 13669 on 13 June 2014. Exec. Order
No. 13669, 79 F.R. 34,999 (18 June 2014). R.C.M. 405 has been modified substantially several times since.

9 ACM 38819
 On 21 October 2014, trial defense counsel requested discovery of “copies of any
communications between the government and the alleged victims or their guardians
regarding the alleged victims’ willingness or availability to provide testimony at the Article
32 hearing or trial.” The Government refused to produce the requested material, claiming
privilege pursuant to Mil. R. Evid. 514.

On 22 October 2014, the Government invited AS, MF, and their guardians to appear
as witnesses at the 3 November 2014 hearing. On 22 October 2014, AS’s guardian declined
the invitation and informed the Government that AS would not participate in the hearing.
On 27 October 2014, MF, through counsel, also declined the invitation, asserting her right
not to testify at the hearing. The Government provided this information to the investigating
officer on 27 October 2014 and requested the investigating officer find AS and MF
unavailable to testify. The next day, the investigating officer sought any defense objections
to the Government’s request that he find the witnesses unavailable.

On 29 October 2014, the Defense objected to AS and MF being found unavailable.
The Defense maintained the investigating officer could not properly make such a
determination without considering any communications between the Government, the
witnesses, or the witnesses’ guardians. Trial defense counsel also stated that “[w]e have
no reason to believe the government acted improperly when communicating with the
alleged victims or their representatives; however, the government is not entitled to a
presumption that it has complied with the rules while denying the IO and defense the ability
to access all relevant information.” Despite the Defense’s objections, the investigating
officer found AS and MF unavailable.

We review arguments of prosecutorial misconduct raised for the first time on appeal
for plain error. See United States v. Akbar, 74 M.J. 364, 398 (C.A.A.F. 2015). Appellant
must show not only the underlying facts alleged to constitute misconduct, but also that the
misconduct resulted in some “unfairness in the proceedings.” Id. at 399.

Appellant asserted no facts constituting misconduct. The Government informed
trial defense counsel that it did not intend to call AS and MF as witnesses at the Article 32
hearing. The Defense did not request AS or MF be made available to testify. Rather, the
Defense’s consternation remained with the Government’s refusal to provide discovery
related to the victims’ communications with the Government—communications in which
trial defense counsel had “no reason to believe the [G]overnment acted improperly.”
Similarly, we have no reason to believe the Government acted improperly when it
requested the investigating officer find AS and MF unavailable after these civilian
witnesses declined the Government’s invitation to testify. Assuming these facts do amount
to some form of prosecutorial misconduct, Appellant suffered no unfairness in his
proceedings. These civilian witnesses could not be compelled by the investigating officer
to appear or testify as part of the investigation. Appellant offers no evidence to show he

10 ACM 38819
was prejudiced by the investigating officer’s determination that these witnesses were
unavailable to testify during Appellant’s Article 32 investigation.

Conclusion

The findings and sentence are correct in law and fact, and no error materially
prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

KURT J. BRUBAKER
Clerk of Court

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