U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 21014
________________________
UNITED STATES
Appellee
v.
Jeremy M. ZIER
Senior Master Sergeant (E-8), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 5 January 2024
________________________
Military Judge: Sterling C. Pendleton.
Sentence: Sentence adjudged on 14 August 2020 by SpCM convened at
Joint Base San Antonio-Randolph, Texas. Sentence entered by military
judge on 2 September 2020: reduction to E-7.
For Appellant: Major David L. Bosner, USAF; Robert A. Feldmeier, Es-
quire.
For Appellee: Major Alex B. Coberly, USAF; Major Jay S. Peer, USAF;
Mary Ellen Payne, Esquire.
Before RICHARDSON, CADOTTE, and ANNEXSTAD, Appellate Mili-
tary Judges.
Senior Judge ANNEXSTAD delivered the opinion of the court, in which
Senior Judge RICHARDSON and Senior Judge CADOTTE joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
ANNEXSTAD, Senior Judge:
A special court-martial composed of officer members convicted Appellant of
dereliction of duty for failing to maintain professional relationships with
United States v. Zier, No. ACM 21014
subordinate Airmen, and committing abusive sexual contact by touching di-
rectly the genitalia and inner thigh of another Airman, in violation of Articles
92 and 120, UCMJ, 10 U.S.C. §§ 892, 920, Manual for Courts-Martial, United
States (2012 ed.) (2012 MCM).1,2 The sentence adjudged by officer members on
14 August 2020 and entered by the military judge on 2 September 2020 con-
sisted of reduction to the grade of E-7. The convening authority denied Appel-
lant’s request for deferment of the reduction in grade.3
On 29 September 2022, Appellant, with assistance of civilian defense coun-
sel, submitted his case to this court in an application for review pursuant to
Article 69(d)(1)(B), UCMJ, 10 U.S.C. § 869(d)(1)(B). That application included
an accompanying brief that identified five assignments of error, which we sum-
marize here: whether (1) the evidence is legally insufficient to support a con-
viction for dereliction of duty because the Government presented no evidence
as to the existence of any duty; (2) the military judge erred when he permitted
the Government to prove Appellant committed the abusive sexual contact of-
fense with inadmissible propensity evidence; (3) the Under Secretary of the Air
Force and the Secretary of the Air Force engaged in apparent and actual un-
lawful command influence preventing Appellant from “receiv[ing] an impartial
consideration of the merits of his other claims” during “appellate” review; (4)
Appellant was subject to unlawful post-trial punishment in excess of the sen-
tence; and (5) The Judge Advocate General (TJAG) improperly found Appel-
lant’s second supplemental petition4 to be untimely, despite the fact that he
filed that petition before the Rule for Courts-Martial 1201(g) review was
1 Applicant was found not guilty of two specifications of abusive sexual contact under
Article 120, UCMJ, 10 U.S.C. § 920, Manual for Courts-Martial, United States (2019
ed.) (2019 MCM).
2 All references to the Rules for Courts-Martial (R.C.M.) and the Military Rules of Ev-
idence (Mil. R. Evid.) are to the 2019 MCM.
3 Although not raised by Appellant, we note that the convening authority failed to in-
clude a reason for denying Appellant’s deferment request. See United States v. Sloan,
35 M.J. 4, 7 (C.M.A. 1992) (the convening authority’s decision on a deferral request
“must include the reasons upon which the action is based” in order to facilitate judicial
review (footnote omitted)), overruled on other grounds by United States v. Dinger, 77
M.J. 447, 453 (C.A.A.F. 2018); see also Article 57(b), UCMJ, 10 U.S.C. § 857(b); R.C.M.
1103. Appellant has not claimed any prejudice from this error, and we find none.
4 The petition at issue in this assignment of error sought relief from The Judge Advo-
cate General (TJAG) on grounds that “the Secretary of the Air Force [wa]s engaged in
apparent and actual unlawful command influence while [Appellant]’s conviction [wa]s
pending Article 69, UCMJ[,] review.”
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United States v. Zier, No. ACM 21014
mailed to him and despite the fact that the petition deals in part with allega-
tions post-dating the original petition.
Before taking action on the application for review, on 22 December 2022
this court specified three issues for briefing by the parties.5 The parties filed
responsive briefs on 26 and 27 January 2023. On 18 April 2023, this court
granted Appellant’s application for review. United States v. Zier, No. ACM
21014, 2023 CCA LEXIS 178, at *21 (A.F. Ct. Crim. App. 18 Apr. 2023) (unpub.
op.).6 On 8 May 2023, Appellant filed a supplemental assignments of error
brief, asking this court to incorporate the five assignments of error noted supra.
The Government filed an answer to Appellant’s supplemental assignments of
error on 6 June 2023. On 13 June 2023, Appellant filed a reply brief.
Having granted Appellant’s application for review, we find that Appellant’s
fifth assignment of error regarding review by TJAG is moot.7
5 This court specified the following issues:
I. WHETHER THE REFERENCES TO ARTICLE 65(b), UCMJ,
WHERE IT APPEARS IN ARTICLE 69, UCMJ, AS AMENDED BY
SECTION 5333 OF THE NATIONAL DEFENSE AUTHORIZATION
ACT FOR FISCAL YEAR 2017, NEGATE (A) THE AUTHORITY OF
THE JUDGE ADVOCATE GENERAL TO REVIEW APPLICATIONS
FOR RELIEF UNDER ARTICLE 69(c), UCMJ; OR (B) THE AUTHOR-
ITY OF THIS COURT UNDER ARTICLE 69(d), UCMJ, TO REVIEW
THE ACTION OF THE JUDGE ADVOCATE GENERAL.
II. WHETHER THE APPLICATION FOR RELIEF TO THE JUDGE
ADVOCATE GENERAL WAS PROPERLY THE SUBJECT OF RE-
VIEW BY THE JUDGE ADVOCATE GENERAL UNDER ARTICLE
69, UCMJ, AS AMENDED BY SECTION 5333 OF THE NATIONAL
DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2017, OR BY
ANY OTHER LAW.
III. IF THE APPLICATION FOR GRANT OF REVIEW IS NOT
PROPERLY BEFORE THIS COURT, WHAT RELIEF, IF ANY, DOES
THIS COURT HAVE AUTHORITY TO ORDER?
United States v. Zier, No. ACM 21014, 2023 CCA LEXIS 178, at *1 n.2 (A.F. Ct. Crim.
App. 18 Apr. 2023) (unpub. op.).
6 Having granted Appellant’s application for review, we find that no further discussion
of the specified issues is required here.
7 Appellant raised the same five assignments of error in his original, supplemental,
and second supplemental petitions for relief to TJAG under Article 69, UCMJ, as he
does to this court. Appellant raised the fifth assignment of error in an effort to persuade
this court to grant his application for review under Article 69(d)(1)(B), UCMJ.
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United States v. Zier, No. ACM 21014
With respect to the first assignment of error we find error, set aside the
findings of guilty to dereliction of duty under Article 92, UCMJ, and reassess
Appellant’s sentence. We affirm the remaining finding of guilty and the sen-
tence, as reassessed.
I. BACKGROUND
In April 2015, Appellant was a master sergeant stationed at Incirlik Air
Base, Turkey. As the senior noncommissioned officer (SNCO) of a small unit
on the base, Appellant oversaw his unit’s operations and supervised several
Airmen junior to him.
Sometime in April 2015, Appellant and some junior-ranking Airmen also
stationed at Incirlik Air Base went on a multiday morale trip to Pamukkale,
Turkey. The group mostly consisted of Airmen who were supervised by Appel-
lant, including Senior Airman (SrA) ST, Airman (Amn) KM, CF,8 and Staff
Sergeant (SSgt) SO. SSgt AW, who was dating Amn KM but did not work for
Appellant, also attended the trip. Appellant was the senior ranking member of
the group.
On the last day of the trip, the group went sightseeing and then returned
to their hotel to relax. Later that night, the group decided to spend time at the
hotel’s hot tub. Members of the group drank alcohol while in the hot tub. At
some point, most of the Airmen present, including Appellant, decided to re-
move their swimsuits such that they were completely naked. Junior Airmen in
Appellant’s unit, including SrA ST and SSgt SO, saw Appellant fully naked.
SSgt AW also recalled seeing Appellant get out of the hot tub, nude.
As the night progressed, Appellant began moving closer to CF in the hot
tub. According to CF’s testimony, at some point Appellant touched CF’s lower
thigh with his hand. CF did not think much of this touch and moved away from
Appellant. Appellant then followed CF and touched her several more times,
each time higher on her thigh. CF believed Appellant was trying to touch her
in a sexual way. She further testified the touching stopped when SrA ST no-
ticed what was happening and sat between Appellant and CF. When SrA ST
left the hot tub to use the bathroom, Appellant inserted his hand in the leg
opening of CF’s swimsuit bottom and touched her vaginal area. CF did not
consent to this touching. She testified that she was upset and soon thereafter
left the hot tub area and went to her hotel room. After the trip, Appellant gave
8 At the time of the trip, CF was also an Airman who worked for Appellant.
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United States v. Zier, No. ACM 21014
everyone in the office a pass day, which seemed to SrA ST “to be a form of
payment because [Appellant] messed up.”
II. DISCUSSION
A. Legal Sufficiency
Appellant contends that his conviction of dereliction of duty for failure to
maintain a professional relationship with subordinate Airmen is legally insuf-
ficient. Specifically, Appellant argues that the Government failed to demon-
strate the existence of a duty—an element of the offense. We agree and find
Appellant’s conviction for dereliction of duty not legally sufficient.
1. Additional Background
During trial the Government called SrA ST as a witness. In addition to de-
scribing his personal recollections of the events in the hot tub in Turkey, he
testified that Appellant’s actions crossed “professional lines” and made him
“uncomfortable . . . only because [it was his] boss.” He also testified that he
found it “abnormal” that his boss, Appellant, would be completely naked among
his subordinates. Finally, SrA ST stated that the events in the hot tub changed
the way he and CF interacted with Appellant in the workplace.
The Government also presented the testimony of SSgt AW, not a subordi-
nate of Appellant. SSgt AW testified that he was “surprised” that Appellant
was naked in the hot tub, and that he “tried to ignore it.” He also stated that
he thought about Appellant’s rank and position, and explained that he “would
not want to be in the position that the [A]irmen under [Appellant] were in.” He
stated that he thought it was “very odd” that Appellant was naked in a hot tub
with subordinates, and he thought Appellant’s actions were not appropriate
behavior from a SNCO.
SSgt SO, a defense witness, testified that he thought Appellant’s behavior
was “inappropriate.” He also testified he would not put himself in the situation
of getting naked in the hot tub again.
2. Law
In reviewing a case under Article 69(d), UCMJ, we may only take action
with “respect to matters of law.” Article 69(e), UCMJ, 10 U.S.C. § 869(e). Issues
of legal sufficiency are reviewed de novo. United States v. Washington, 57 M.J.
394, 399 (C.A.A.F. 2002) (citation omitted). This court’s assessment of legal
“sufficiency is limited to the evidence produced at trial.” United States v.
Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) (citing United States v.
Dykes, 38 M.J. 270, 272 (C.M.A. 1993)).
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United States v. Zier, No. ACM 21014
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
As a result, “[t]he standard for legal sufficiency involves a very low threshold
to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(alteration in original) (citation omitted). The test for legal sufficiency “gives
full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The dereliction of duty specification (Charge I and its Specification) alleged:
[T]hat [Appellant], . . . who knew of his duties at or near Pamuk-
kale, Republic of Turkey, between on or about 1 April 2015 and
on or about 30 April 2015, was derelict in the performance of
those duties in that he willfully failed to maintain professional
relationships with subordinate Airmen, as it was his duty to do,
by wrongfully removing his clothing, such that he was com-
pletely nude, while he was in a hot tub with several Airmen who
were junior in rank to him.
To find Appellant guilty of dereliction of duty in violation of Article 92,
UCMJ, the members were required to find the following three elements beyond
a reasonable doubt: (1) that Appellant had a duty to maintain professional re-
lationships with subordinate Airmen; (2) that Appellant knew of this duty; and
(3) that Appellant was willfully derelict in the performance of this duty by
wrongfully removing his clothing, such that he was completely nude, while he
was in a hot tub with several Airmen who were junior in rank to him. See
Manual for Courts-Martial, United States (2012 ed.) (2012 MCM), pt. IV,
¶ 16.b.(3).
A military duty may be imposed by “treaty, statute regulation, lawful order,
standard operating procedure, or custom of the service.” 2012 MCM, pt. IV,
¶ 16.c.(3)(a); United States v. Tanksley, 36 M.J. 428, 430 (C.M.A. 1993) (citation
6
United States v. Zier, No. ACM 21014
omitted), overruled in part on other grounds by United States v. Inong, 58 M.J.
460 (C.A.A.F. 2003). Furthermore, our superior court has stated:
[I]f the Government wishes to prosecute . . . on the basis of a cus-
tom in the military service, testimony must be offered by a
knowledgeable witness—subject to cross-examination—about
that custom. To require less is to allow the factfinder to make a
determination that a custom exists without any indication on
the record as to what that custom is.
United States v. Wales, 31 M.J. 301, 309 (C.M.A. 1990).
The evidence must demonstrate the existence of a duty in order to satisfy
the first element of a dereliction of duty offense. Tanksley, 36 M.J. at 430.
Knowledge of a duty may be proved by direct or circumstantial evidence. See
2012 MCM, pt. IV, ¶ 16.c.(3)(b).
3. Analysis
a. Willful Dereliction of Duty
The Government failed to prove all three elements of willful dereliction of
duty. Whether a military duty exists in the Air Force to abstain from unpro-
fessional relationships is not the issue before us. Here, the Government simply
failed to present sufficient evidence of that duty at Appellant’s trial. While the
record arguably contains some evidence that Appellant’s behavior with subor-
dinate Airmen was not appropriate nor professional, we are unconvinced that
the record demonstrates that the Government admitted evidence of Appellant’s
existing duty to maintain professional relationships with subordinates and
that he knew of this duty.
The Government was required to prove all three elements of the charged
offense. This included a duty to “maintain professional relationships with sub-
ordinate Airmen” as explicitly alleged in the Specification of Charge I. The
Government presented no direct evidence of a duty, thus we presume its case
rested on the custom of the Air Force. The failure of the Government to ade-
quately prove what the Air Force duty was—and that Appellant knew of this
duty—precludes us from upholding the finding of guilty for the dereliction of
duty offense as a matter of law. Simply stated, we find no evidence in the record
to support the proposition that Appellant knew of and was bound by a military
duty, stemming from “standard operating procedure” or “custom of the service”
and subject to discipline under Article 92, UCMJ. 2012 MCM, pt. IV,
¶ 16.c.(3)(a).
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United States v. Zier, No. ACM 21014
In its brief to this court, the Government concedes that it would “have been
prudent for the Government to admit evidence of the applicable version of Air
Force Instruction (AFI) 36-2909, Air Force Professional Relationships and Con-
duct, as evidence of a duty.” The Government also concedes that no witness
“explicitly stated that Appellant had a duty to maintain professional relation-
ships with subordinate Airmen.” Nonetheless, the Government argues that it
proved the existence of a duty through the testimony of several witnesses. The
Government points to the testimony of SrA ST, who stated that he found it
“abnormal” and “unprofessional” for his boss to be nude in a hot tub with sub-
ordinates. Additionally, the Government directs our attention to the testimony
of SSgt AW who stated that it was not appropriate for Appellant, as a senior
noncommissioned officer, to be naked in a hot tub with subordinate Airmen.
Finally, the Government highlights the testimony of SSgt SO who opined that
Appellant’s conduct in removing his clothing in the hot tub was inappropriate.
We find this testimony highlighted by the Government provides some sup-
port for the third element of the offense—that Appellant was willfully derelict
in the performance of his duty by wrongfully removing his clothing, such that
he was completely nude, while he was in a hot tub with several Airmen who
were junior in rank to him. However, we find the evidence falls short of estab-
lishing the first and second elements—that Appellant had an Air Force duty to
maintain professional relationships with his subordinates, and that he knew
of that duty. First, we note that no witness was specifically called for the pur-
pose of establishing an Air Force duty by custom of the service, or with
knowledge of an Air Force custom regarding professional relationships with
junior, subordinate Airmen. See Wales, 31 M.J. at 309. Indeed, the words “cus-
tom” or “duty” were not used by any of the witnesses during trial. Although at
least one witness opined Appellant acted unprofessionally, no witness provided
evidence Appellant knew of his duty to maintain professional relationships.
This opinion does not condone Appellant’s behavior in Turkey, nor does it ques-
tion whether a duty to maintain professional relationships exists. It would ap-
pear that the Government simply missed the layup by not offering sufficient
evidence during Appellant’s trial to establish an Air Force duty. The law does
not permit a factfinder, or this court for that matter, to presume the existence
of a duty in the absence of properly admitted evidence.
Therefore, after considering the evidence presented at trial in the light
most favorable to the Government, we conclude no rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. In
reaching this conclusion we find that the Government failed to establish both
the existence of a duty—to maintain professional relationships with subordi-
nate Airmen—and Appellant’s knowledge of such duty. Accordingly, we find
8
United States v. Zier, No. ACM 21014
Appellant’s conviction for dereliction of duty legally insufficient and we set
aside Appellant’s conviction of that offense.
b. Reassessment
Having set aside Appellant’s conviction, we have considered whether we
may reliably reassess Appellant’s sentence in light of the factors identified in
United States v. Winckelmann, 73 M.J. 11, 15–16 (C.A.A.F. 2013). We conclude
that we can.
First, we find that setting aside Appellant’s conviction for dereliction of
duty does not result in a dramatic change to the penalty landscape and Appel-
lant’s exposure. Here, the maximum term of confinement for Appellant’s con-
viction for dereliction of duty was 6 months, as opposed to 12 months’ confine-
ment for his conviction of abusive sexual contact. Therefore, our action does
not reduce the maximum imposable term of confinement. Moreover, the re-
maining elements of the maximum punishment are unchanged as they were
also limited by the forum of the court-martial.
As to the second factor, although Appellant was sentenced by officer mem-
bers, the only punishment adjudged in Appellant’s case consisted of a one-
stripe reduction in Appellant’s grade—from E-8 to E-7. As to the third Winck-
elmann factor, we find the remaining convicted offense fairly “capture[s] the
gravamen of criminal conduct included within the original offenses,” namely
Appellant touching CF in a sexual manner without her consent in the hot tub.
Id. at 16. Finally, the remaining offense is a type with which the judges of this
court have “experience and familiarity.” Id. Accordingly, we are confident we
can determine what sentence would have been imposed had Appellant been
convicted of only the abusive sexual contact offense. See id. at 15 (holding a
Court of Criminal Appeals may reassess a sentence if it “can determine to its
satisfaction that, absent any error, the sentence adjudged would have been of
at least a certain severity . . . .” (omission in original) (quoting United States v.
Sales, 22 M.J. 305, 308 (C.M.A. 1986))).
Based on our experience and familiarity with this type of offense, and tak-
ing all factors into consideration, we conclude that the panel of officer members
would have imposed a sentence of at least reduction to the grade of E-7 for
Appellant’s abusive sexual contact conviction. Accordingly, we reassess the
sentence to the same sentence Appellant received, which is a reduction to the
grade of E-7.
B. Propensity Evidence
Appellant claims the military judge erred when he permitted the Govern-
ment to prove the abusive sexual contact offense—Specification 1 of Charge
9
United States v. Zier, No. ACM 21014
II—with inadmissible propensity evidence. Specifically, Appellant argues the
military judge erred in his application of the second and third prongs of the
Reynolds test. United States v. Reynolds¸ 29 M.J. 105, 109 (C.M.A. 1989). We
disagree and find no relief is warranted.
1. Additional Background
a. Government’s Notice
Before trial, the Government provided written notice to Appellant of its in-
tent to admit, in relevant part, evidence of the following under Mil. R. Evid.
404(b):
Statements by [Appellant] to [CF] and [SM] inquiring whether
or not they have had “one night stands” and asking them to walk
him home while they were at the “smoke pit” at or near the In-
cirlik Air Base Enlisted Club between on or about May of 2014
and on or about September of 2015. [CF] and [SM] will describe
[Appellant] as being highly intoxicated at the time he made
these statements. These statements are being noticed pursuant
to [Mil. R. Evid.] 404(b) as evidence of intent, plan, modus op-
erandi, and absence of mistake on the part of [Appellant].
Statements by [Appellant] to [CF] regarding her involvement in
the Lesbian, Gay, Bi-Sexual, Transgender, and Questioning
(LGBTQ) community, to include inquiring about specific sex acts
between females, [CF’s] sexual history, and statements includ-
ing “a female just can’t satisfy you the way a man can” and
“maybe you just haven’t had the right d[**]k yet” or words to
that effect while they were at or near Pamukkale, Republic of
Turkey between on or about 1 April 2015 and on or about 30
April 2015. [CF] will describe [Appellant] as being highly intox-
icated at the time he made these statements. These statements
are being noticed pursuant to [Mil. R. Evid.] 404(b) as evidence
of intent, plan, modus operandi, and absence of mistake on the
part of [Appellant].
b. Motion in Limine
The Defense filed a motion in limine requesting the military judge exclude
the noticed evidence. The Government responded to the motion and requested
an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session to present testimony. Dur-
ing the Article 39(a), UCMJ, session, the Government presented the testimony
of SM and CF.
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United States v. Zier, No. ACM 21014
SM testified that she was stationed at Incirlik Air Base from January 2014
until April 2015. SM stated that at that time she was junior in rank and
worked under Appellant. SM described an incident that took place at the en-
listed club in late 2014 or early 2015. That particular night, SM went to the
enlisted club with CF and saw Appellant there. Appellant was visibly drunk.
At some point that evening, Appellant asked SM and CF if they had ever had
a one-night stand. SM recalled making eye contact with CF and being unsure
how to react to Appellant’s question.
During the Article 39(a), UCMJ, session, CF testified she went on the trip
to Pamukkale, Turkey in 2015 described supra. CF stated that approximately
15–20 minutes before she went down to the hot tub, Appellant came into her
hotel room and began asking CF about her bisexuality. CF said Appellant’s
questions were initially appropriate but became more sexual when Appellant
asked CF to explain how two females have intercourse together and asked if
CF chose to be with female partners because she hadn’t “found the right d[**]k
yet.” CF testified that being asked those questions by Appellant—her superin-
tendent—made her feel very uncomfortable.
c. Military Judge’s Ruling
The military judge issued a written ruling denying the defense motion to
exclude this evidence. Applying the three-prong test in Reynolds, 29 M.J. at
109, the military judge concluded the evidence of the acts the Government
sought to admit was admissible.
As to the first prong of the Reynolds test—that the evidence reasonably
supports a finding by the court members that Appellant committed the prior
crimes, wrongs or acts—the military judge concluded that the members could
determine the uncharged acts—statements concerning “one-night stand[s],”
“sexuality,” and having “just not found the right d[**]k yet” occurred.
Concerning the second prong—that a fact of consequence is made more or
less probable by the existence of the evidence—the military judge found the
evidence of the uncharged acts was not being offered for propensity purposes,
but rather to prove Appellant’s intent and plan in committing the offenses al-
leged in the Specification of Charge I and Specification 1 of Charge II. Here,
the military judge noted the acts of “directing conversations to a sexual nature
in different situations indicate a deliberate state of mind consistent with the
criminal intent required for” the offenses. He further explained that the acts
“demonstrate[ ] the [Appellant]’s desire and intent to direct the conversation
or situation to one of a sexual nature . . . to test the boundaries of CF’s willing-
ness to engage in sexual activity.” The military judge then noted that some of
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United States v. Zier, No. ACM 21014
these acts occurred on the same night as the offenses alleged in the Specifica-
tion of Charge I and Specification 1 of Charge II.
Finally, as to the third Reynolds prong, the military judge found the proba-
tive value of the evidence was not substantially outweighed by the danger of
unfair prejudice. The military judge described the probative value as “signifi-
cant” as to Appellant’s state of mind relative to the charges. While also con-
cluding the members would not be misled or confused by the proffered evi-
dence, nor would they use it for an improper purpose. The military judge also
noted that any evidence admitted under Mil. R. Evid. 404(b) would be accom-
panied by a limiting instruction, directing the members on how they could
properly use the evidence.
2. Law
A military judge’s ruling under Mil. R. Evid. 404(b) and Mil. R. Evid. 403
will not be disturbed except for a clear abuse of discretion. United States v.
Morrison, 52 M.J. 117, 122 (C.A.A.F. 1999) (citation omitted). “A military judge
abuses his discretion when: (1) the findings of fact upon which he predicates
his ruling are not supported by the evidence of record; (2) [ ] incorrect legal
principles were used; or (3) [ ] his application of the correct legal principles to
the facts is clearly unreasonable.” United States v. Ellis, 68 M.J. 341, 344
(C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F.
2008) (per curiam)). Stated another way, an abuse of discretion occurs when
the military judge’s decision is “outside the range of choices reasonably arising
from the applicable facts and the law.” United States v. Miller, 66 M.J. 306,
307 (C.A.A.F. 2008) (citation omitted).
Mil. R. Evid. 404(b) provides that evidence of a crime, wrong, or other act
by a person is not admissible as evidence of the person’s character to show the
person acted in conformity with that character on a particular occasion. More-
over, it cannot be used to show predisposition toward crime or criminal char-
acter. United States v. Staton, 69 M.J. 228, 230 (C.A.A.F. 2010). However, such
evidence may be admissible for another purpose, including to show, inter alia,
motive, intent, plan, absence of mistake, or lack of accident. Id.; Mil. R. Evid.
404(b)(2). The list of potential purposes in Mil. R. Evid. 404(b)(2) “is illustra-
tive, not exhaustive.” United States v. Ferguson, 28 M.J. 104, 108 (C.M.A. 1989)
(footnote omitted).
We apply a three-part test to review the admissibility of evidence under
Mil. R. Evid. 404(b): (1) Does the evidence reasonably support a finding by the
factfinder that Appellant committed the other crime, wrong, or act? (2) Does
the evidence of the other act make a fact of consequence to the instant offense
more or less probable? (3) Is the probative value of the evidence of the other
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United States v. Zier, No. ACM 21014
act substantially outweighed by the danger of unfair prejudice under Mil. R.
Evid. 403? Reynolds, 29 M.J. at 109 (citations omitted). “If the evidence fails to
meet any one of these three standards, it is inadmissible.” Id.
Concerning the third Reynolds prong, our superior court has instructed
that “the military judge enjoys wide discretion when applying [the] Mil. R.
Evid. 403” balancing test. Tanksley, 54 M.J. at 176 (internal quotation marks
and citations omitted). They have also made clear that they will exercise great
restraint in reviewing the decision and will give the decision maximum defer-
ence in determining whether there is a clear abuse of discretion when a mili-
tary judge conducts Mil. R. Evid. 403 balancing on the record. Id. at 176–77.
3. Analysis
On appeal, Appellant contends the military judge’s application of legal
principles to the facts was unreasonable. Specifically, Appellant argues the
military judge reached the wrong conclusion concerning the second and third
prongs of the Reynolds test in finding the evidence’s probative value was not
substantially outweighed by the danger of unfair prejudice. We find that the
military judge did not abuse his discretion.
In his written ruling, the military judge applied the first Reynolds prong—
whether the evidence reasonably supported a finding that Appellant engaged
in other acts—and was satisfied the factfinder could reasonably determine Ap-
pellant was the person responsible for making sexually charged statements
and directing conversations to sexually charged topics. We find the military
judge’s factfinding on the first Reynolds prong was supported by the evidence
of record. Thus, we conclude that the military judge properly applied the first
Reynolds prong.
The military judge applied the second Reynolds prong—whether the evi-
dence of the other acts makes a fact of consequence to the instant offenses more
or less probable—and found the uncharged acts were evidence of Appellant’s
intent to commit the offense of abusive sexual contact. Here, the Government
was required to prove that Appellant touched the inner thigh and genitalia of
CF with an intent to gratify his sexual desire, rather than by mere accident.
The military judge properly recognized that a primary fact of consequence in
this litigated case was Appellant’s intent in engaging in sexual behavior, and
unprofessional relationships. Evidence of Appellant’s sexual interest in CF and
another female subordinate made the fact that Appellant touched the inner
thigh and genitalia of CF with an intent to gratify his sexual desire more prob-
able. Furthermore, it is clear from the record of trial that the Defense made
intent an issue during the cross-examination of Government witnesses at trial.
Additionally, the military judge concluded there was a secondary non-
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United States v. Zier, No. ACM 21014
propensity purpose for allowing the evidence to be presented. Here, the mili-
tary judge also found the sexually charged statements made by Appellant were
indicative of Appellant’s “plan to direct the conversation to one of a sexual na-
ture so as to engage in an unprofessional relationship or sexual touching.” The
military judge found the acts made it more likely Appellant would engage in
sexual activities and unprofessional relations with subordinates. Thus, we con-
clude that the military judge’s application of the second Reynolds prong was
not clearly unreasonable.
Applying the third Reynolds prong, the military judge found the probative
value of the evidence was not substantially outweighed by the danger of unfair
prejudice. Here, the military judge provided written assessments of both the
probative value and the potential prejudice on each of the individual pieces of
uncharged evidence the Government sought to introduce. The military judge
concluded the probative value of the evidence was “significant as to [Appel-
lant]’s state of mind as it relates to the Specification of Charge I and Specifica-
tion 1 of Charge II,” and that the danger of unfair prejudice was low because
any evidence admitted under Mil. R. Evid. 404(b) would be accompanied by a
proper limiting instruction that would further mitigate the likelihood of the
evidence being used for an improper purpose—namely propensity. Exercising
the restraint required of appellate courts and providing appropriate deference
to the military judge’s decision, we find the military judge’s written analysis
on the third prong of the Reynolds test is not outside the range of choices rea-
sonably arising from the specific facts of this case and the law. See Miller, 66
M.J. at 307.
In conclusion, we find the military judge did not abuse his discretion in
ruling the evidence was admissible for the limited purposes of showing Appel-
lant’s intent and plan to engage in sexual activities and unprofessional rela-
tions. His findings of fact were supported by the record and therefore were not
arbitrary, fanciful, clearly unreasonable, or clearly erroneous. Appellant has
not shown the military judge incorrectly applied the law nor that he abused
his discretion by admitting the Mil. R. Evid. 404(b) evidence offered by the
Government. See Morrison, 52 M.J. at 122 (citation omitted).
C. Command Influence
Appellant contends that two public statements made by the Secretary of
the Air Force (SECAF) and the Under Secretary of the Air Force (USECAF)
nine months or more after the entry of judgment was signed in Appellant’s case
constituted both “actual” and “apparent” command influence. Specifically, Ap-
pellant contends these statements constituted “improper manipulation of the
criminal justice process”—including the appellate process. Appellant asks that
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United States v. Zier, No. ACM 21014
we set aside his convictions. We disagree with Appellant and find no relief is
warranted.
1. Additional Background
Appellant was sentenced on 14 August 2020 and the military judge signed
the entry of judgment on 2 September 2020.
a. Statements by Air Force Leadership9
Ms. Gina Ortiz Jones served as the USECAF from 26 July 2021 to 6 March
2023. On 22 March 2021, prior to beginning her service as the USECAF,
Ms. Jones posted a “tweet” on the social networking platform Twitter in which
she stated, “Convicted sex offenders should not serve in our military.” Within
the same tweet, Ms. Jones included a link to a news article that apparently
referenced an administrative discharge board’s decision to retain Appellant de-
spite his conviction of a sex crime.
The Honorable Frank Kendall III became the SECAF on 28 July 2021. Ap-
pellant alleges that on or about 6 January 2022, the SECAF directed Appel-
lant’s retirement as a technical sergeant and issued the following statement to
print media:
As a senior non-commissioned officer, [Appellant] had a special
responsibility and duty to protect and look after the [A]irmen
under his authority. [Appellant]’s misconduct against a fellow
[A]irman violated that trust and his duty as an Air Force leader.
Such conduct is unacceptable, does not meet Air Force standards
and won’t be tolerated.
b. TJAG’s Review of Appellant’s Case
In August 2022, TJAG reviewed the record of trial in Appellant’s case pur-
suant to Article 69, UCMJ, including Appellant’s original and supplemental
petition, and determined no error prejudicial to the substantial rights of Ap-
pellant occurred at his court-martial. Appellant was notified of this decision on
9 Information in this section comes from Appellant’s Article 69, UCMJ, applications to
TJAG and this court. On 17 November 2022, the Government moved to attach Appel-
lant’s original and supplemental applications to TJAG which this court granted on 28
November 2022. See United States v. Jessie, 79 M.J. 437, 441–46 (C.A.A.F. 2020). We
assume, without deciding, that we may consider this information. Cf. United States v.
Behunin, 83 M.J. 158, 161 (C.A.A.F. 2023) (assuming without deciding the Court of
Criminal Appeals properly considered the entry of judgment from a separate court-
martial).
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United States v. Zier, No. ACM 21014
11 August 2022, and at this same time, was informed he could petition this
court for further review.
2. Law
Command influence is prohibited by Article 37, UCMJ, 10 U.S.C. § 837.10
An appellate court “reviews allegations of unlawful command influence, in-
cluding allegations of the appearance of unlawful command influence, de
novo.” United States v. Proctor, 81 M.J. 250, 255 (C.A.A.F. 2021) (citations
omitted).
Under the previous version of Article 37, UCMJ, “[t]wo types of unlawful
command influence c[ould] arise in the military justice system: actual unlawful
command influence and the appearance of unlawful command influence.”
United States v. Boyce, 76 M.J. 242, 247 (C.A.A.F. 2017).
Actual command influence “is an improper manipulation of the criminal
justice process which negatively affects the fair handling and/or disposition of
a case.” Id. (citations omitted). In order to demonstrate actual command influ-
ence, an appellant “must show: (1) facts, which if true, constitute unlawful
command influence; (2) that the proceedings were unfair; and (3) that the un-
lawful command influence was the cause of the unfairness.” United States v.
Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013) (citation omitted). “[T]he initial bur-
den of showing potential unlawful command influence is low, but is more than
mere allegation or speculation.” Id. (citation omitted).
Once an issue of unlawful command influence is raised by some
evidence, the burden shifts to the [G]overnment to rebut an al-
legation of unlawful command influence by persuading the
[c]ourt beyond a reasonable doubt that (1) the predicate facts do
not exist; (2) the facts do not constitute unlawful command in-
fluence; or (3) the unlawful command influence did not affect the
findings or sentence.
Id. (citing United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999)).
Unlike actual command influence, a meritorious claim of an appearance of
command influence did not require prejudice to an accused; rather, the preju-
dice was the adverse impact to the “public’s perception of the fairness of the
10 References to Article 37, UCMJ, are to the version in effect with respect to allega-
tions of command influence committed on or after 20 December 2019, following the
enactment of the National Defense Authorization Act for Fiscal Year 2020, Pub. L. No.
116-92, § 532, 133 Stat. 1359–61 (2019), striking “Unlawfully influencing action of
court” and inserting “Command influence.”
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United States v. Zier, No. ACM 21014
military justice system as a whole.” Boyce, 76 M.J. at 248–49 (footnote omit-
ted). “[W]hen an appellant asserts there was an appearance of unlawful com-
mand influence,” the appellant is required to initially “show ‘some evidence’
that unlawful command influence occurred.” Id. at 249 (footnote and citations
omitted). “‘[S]ome evidence’ of an appearance of unlawful command influence”
exists when conduct “ha[s] the potential to appear to ‘coerce or . . . influence’
the outcome” of a court-martial. United States v. Bergdahl, 80 M.J. 230, 236
(C.A.A.F. 2020) (omission in original) (footnote omitted) (quoting Boyce, 76
M.J. at 249, 253).
If the Government failed to rebut an appellant’s factual showing, it could
still prevail against a claim of apparent command influence if it proved
beyond a reasonable doubt that the unlawful command influence
did not place “an intolerable strain” upon the public’s perception
of the military justice system and that “an objective, disinter-
ested observer, fully informed of all the facts and circumstances,
would [not] harbor a significant doubt about the fairness of the
proceeding.”
Boyce, 76 M.J. at 249 (alteration in original) (quoting Salyer, 72 M.J. at 423).
Effective 20 December 2019, Congress modified Article 37, UCMJ, to pro-
vide: “No finding or sentence of a court-martial may be held incorrect on the
ground of a violation of this section unless the violation materially prejudices
the substantial rights of the accused.” 10 U.S.C. § 837(c); National Defense Au-
thorization Act for Fiscal Year 2020, Pub. L. No. 116–92, § 532, 133 Stat. 1360
(2019).
Our superior court has not yet addressed how this statutory change has
altered its prior doctrine on apparent command influence. See United States v.
Horne, 82 M.J. 283, 284 n.1 (C.A.A.F. 2022); Proctor, 81 M.J. at 255 n.3.
3. Analysis
As to the threshold question of whether the SECAF and the USECAF are
capable of influencing the actions of Appellant’s case under Article 37, UCMJ,
we find they can. Next, as we stated in United States v. Burnett, we find “that
under the applicable version of Article 37, UCMJ, Appellant is required to
demonstrate material prejudice in order to obtain relief.” 2022 CCA LEXIS
342, at *58 (A.F. Ct. Crim. App. 10 Jun. 2022) (unpub. op.), rev. denied, 83 M.J.
73 (C.A.A.F. 2022); see 10 U.S.C. § 837(c). Considering the specific facts of this
case, under either the actual command influence or the apparent command
influence standard, Appellant has failed to make the required initial showing
of some evidence that unlawful command influence occurred.
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United States v. Zier, No. ACM 21014
As to the statements in question here, we note they were made well after
the entry of judgment in this case was complete. Therefore, only the appellate
process in Appellant’s case was proceeding at the time the statements were
made. We first address the statement made on the social media application
Twitter by the USECAF that “[c]onvicted sex offenders should not serve in our
military.” We note the statement was not directed to anyone in particular.
Moreover, it referenced Appellant not by name, but by including a link to a
news article concerning the result of Appellant’s discharge board. We find no
evidence that the USECAF was attempting to influence the military justice
appellate process. As to the second statement, we find this was a statement to
accompany the decision the SECAF had made concerning Appellant’s retire-
ment application. Again, this statement was not directed to anyone in particu-
lar and, in context, served only to provide the rationale for the decision that
the SECAF personally made on Appellant’s retirement application.
Considering the totality of the circumstances, we are not persuaded that
any objective, disinterested, fully informed observer would perceive the SECAF
or the USECAF were attempting to improperly manipulate or influence the
military justice appellate process by pressuring TJAG or this court to provide
no relief to Appellant during the appellate review of his case. Finally, assuming
arguendo Appellant made a sufficient initial showing of unlawful command
influence, we conclude beyond a reasonable doubt that neither of the state-
ments highlighted affected the findings or sentence or the appellate process
nor, to the extent the apparent command influence doctrine still applies, put
an intolerable strain on the public’s perception of the fairness of the military
justice system. Indeed, we provide Appellant relief as described in Section A,
supra.
D. Post-Trial Punishment
Appellant contends he was subjected to unlawful post-trial punishment by
his command in several ways. First, Appellant complains he was not “permit-
ted to perform military duties suitable for his grade and experience.” Second,
he states he was placed on administrative hold for a year, assigned only to
telework, and was excluded from unit activities, morale events, and holiday
parties. Finally, Appellant states he was not allowed to “interact with anyone
outside” his unit’s leadership. Appellant asks that we set aside the findings
and sentence.
Jurisdiction is a question of law which this court reviews de novo. United
States v. Buford, 77 M.J. 562, 564 (A.F. Ct. Crim. App. 2017). The burden to
establish jurisdiction rests with the party invoking this court’s jurisdiction. Id.
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United States v. Zier, No. ACM 21014
While we have considerable discretion in carrying out our Article 66(d),
UCMJ, 10 U.S.C. § 866(d), responsibility to review the appropriateness of a
sentence, that discretion is not unlimited. As we often have noted, this court is
one of limited jurisdiction and we possess only that power authorized by the
Constitution and statute, which does not include the power to fashion relief for
issues not directly connected to an approved court-martial sentence. Buford,
77 M.J. at 564, 565. In Buford, Appellant took issue with the decisions of mili-
tary officials, whether in personnel, finance, or both, that caused a continuing
delay of his pay for the period of accrued leave that he elected to receive before
going on unpaid excess leave. Id. at 563. This court denied relief, explaining
that Article 66(d), UCMJ, does not grant this court unlimited power to “grant
relief for an administrative matter unrelated to any legal deficiency and un-
connected to the legality or appropriateness of a court-martial sentence.” Id. at
565. Instead, our authority to grant relief must be rooted and limited to a legal
deficiency that directly impacted a component of the sentence that was ap-
proved by the convening authority. Id. Stated another way, Appellant must
demonstrate some “nexus” to the approved sentence. Id. at 563.
Appellant has not demonstrated that any of his complaints are more than
administrative in nature, and has not presented evidence that military officials
directed actions to increase the severity of his sentence and thereby impose
illegal post-trial punishment. Therefore, we find that the actions complained
of by Appellant are beyond this court’s statutory jurisdiction to review and that
Appellant is not entitled to relief.
III. CONCLUSION
The findings of guilty as to the Specification of Charge I and Charge I are
SET ASIDE. The Specification of Charge I and Charge I are DISMISSED
WITH PREJUDICE. We reassess the sentence to a reduction to the grade of
E-7. The remaining findings of guilty and the sentence, as reassessed, are cor-
rect in law, and no other error materially prejudicial to the substantial rights
of Appellant occurred. Articles 59(a), 66(d), and 69(e), UCMJ, 10 U.S.C.
§§ 859(a), 866(d), 869(e).
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United States v. Zier, No. ACM 21014
Accordingly, the remaining findings and the reassessed sentence are AF-
FIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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