United States v. Schram ( 2020 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39751
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UNITED STATES
Appellee
v.
Zakery J. SCHRAM
Airman Basic (E-1), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 4 December 2020
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Military Judge: Mark F. Rosenow.
Approved sentence: Dishonorable discharge, confinement for 8 years,
and forfeiture of all pay and allowances. Sentence adjudged 30 March
2019 by GCM convened at Davis-Monthan Air Force Base, Arizona.
For Appellant: Major Benjamin H. DeYoung, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major Jessica L. Delaney, USAF; Cap-
tain Cortland T. Bobczynski, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military
Judges.
Judge RICHARDSON delivered the opinion of the court, in which Senior
Judge POSCH and Judge MEGINLEY joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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United States v. Schram, No. ACM 39751
RICHARDSON, Judge:
The case before us is Appellant’s second court-martial. 1 A general court-
martial composed of officer members found Appellant guilty, contrary to his
pleas, of one specification each of aggravated sexual assault of a child (ML) on
divers occasions, aggravated sexual assault of ML, aggravated sexual abuse of
a child (ML) on divers occasions, and sexual assault of NM on divers occasions,
in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920 (Charge I); and three specifications of assault consummated by a battery
of NM, one of which was on divers occasions, in violation of Article 128, UCMJ,
10 U.S.C. § 928 (Charge II). 2,3 Appellant was sentenced to a dishonorable dis-
charge, confinement for eight years, and forfeiture of all pay and allowances.
The convening authority approved the sentence as adjudged.
Appellant raises four issues on appeal: (1) whether the evidence is legally
and factually sufficient to support the convictions for offenses against NM; (2)
whether the military judge erred when he did not recuse himself from presid-
ing over Appellant’s court-martial; (3) whether the staff judge advocate’s rec-
ommendation (SJAR) to the convening authority and addendum properly ad-
vised the convening authority of the correct clemency options; and (4) whether
the military judge erred in denying the defense motion to exclude the testimony
of ML, or dismiss the specifications relating to her in Charge I, because she
testified as a witness under Mil. R. Evid. 413 or 414 at Appellant’s prior court-
martial. 4 We have carefully considered issue (4), which Appellant personally
raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find it does not require further discussion or warrant relief. See United States
1In his previous court-martial, this court affirmed the findings and sentence to a dis-
honorable discharge, confinement for five years, total forfeitures, and reduction to E-
1. See United States v. Schram, No. ACM 38954, 2017 CCA LEXIS 350 (A.F. Ct. Crim.
App. 22 May 2017) (unpub. op.), rev. denied, 2017 CCA LEXIS 862 (C.A.A.F. 5 Sep.
2017).
2 All references in this opinion are to the Manual for Courts-Martial, United States
(2016 ed.), including Appendix 28, as applicable.
3Appellant was acquitted of one specification of aggravated sexual contact with a child
(ML), and three specifications (Specifications 1, 2, and 5) of assault consummated by a
battery (NM).
4ML was not a named victim in Appellant’s previous court-martial, but testified at
Appellant’s prior court-martial to the conduct that is charged in the court-martial now
before this court. ML was 15 years old at the time of the alleged offenses against her
and 18 years old at the time of Appellant’s previous court-martial.
2
United States v. Schram, No. ACM 39751
v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). Finding no error that materially
prejudiced Appellant’s substantial rights, we affirm the findings and sentence.
I. BACKGROUND
Appellant and then-Airman First Class NM met around July 2014 through
their duties in the aircraft maintenance squadron at Davis-Monthan Air Force
Base, Arizona. They spent off-duty time together at Appellant’s apartment and
carpooled to work in her vehicle. Appellant began calling NM his girlfriend and
NM “was fine with him at that time, so [she] didn’t disagree.” They went on
one “date,” to a restaurant. While they were planning to travel to Texas to at-
tend NM’s sister’s graduation from basic training, NM’s family said they could
not share a room unless they were married. Appellant asked NM, “You want
to get married then?” to which she replied, “Okay.” They married at the local
county courthouse in September 2014. In November 2014, they moved from his
apartment to a house.
When Appellant and NM met, Appellant was under investigation for
charges which were the subject of Appellant’s previous court-martial. NM at-
tended Appellant’s trial in June 2015, after which he was convicted and im-
prisoned. She signed a letter for Appellant to provide to the convening author-
ity requesting clemency. She visited Appellant while he was confined locally,
and wrote him intimate letters. NM stated she did these things because she
knew Appellant wanted her to, she did not want to anger him, and she wanted
him to feel better.
NM was deployed the first half of 2016, and in October 2016 filed for divorce
from Appellant. NM’s divorce from Appellant was final in May 2017. Five days
later NM reported the allegations before this court against Appellant to Air
Force Office of Special Investigations agents. By the time of Appellant’s second
court-martial, NM was married to an Airman whom she met at work in July
2015 and had started dating sometime after Appellant’s first court-martial.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant challenges the legal and factual sufficiency of the findings of
guilt with respect to NM. The focus of Appellant’s assignment of error is NM’s
credibility. Appellant claims NM was not a credible witness for the following
reasons: (1) she failed to report, and she specifically denied, any alleged wrong-
doing previously; (2) she continued to support Appellant during his court-mar-
tial and some period of his confinement; (3) she had a religious motive to lie;
(4) she had a romantic motive to lie; and (5) her “story was wildly inconsistent
over time” and “suspiciously similar” to a victim in Appellant’s previous court-
3
United States v. Schram, No. ACM 39751
martial, raising reasonable doubt. We are not persuaded by Appellant’s claims
and conclude the convictions are legally and factually sufficient.
1. Additional Background
At trial, NM described Appellant as “a very jealous person” and “very con-
trolling.” For example, Appellant would not “allow” NM to wear perfume or
talk to men at work, or wear more revealing shorts or shirts outside the home.
He timed her trips home from work, and would question her if the commute
took her a minute longer than he expected. If she wore lacy underwear to work,
he would get angry and accuse her of wearing them for someone else. Once, he
demanded to smell her underwear to “see if [she] had been cheating on him.”
On her phone and social-media accounts, he either would not allow her to have,
or demanded to know, the password. He usually would monitor her phone calls,
sometimes making her use the speakerphone. He got angry when her car was
parked next to someone he disliked, and when her relationship with her sister
was too close. Appellant regularly called NM derogatory names and laid blame
on her for his shortcomings, telling NM “if [she] was a better wife, he would be
a better husband.” He sometimes angrily confronted NM at her workplace,
usually when her lunch break was delayed or she had to work late. He required
her to awaken before him, around 0300−0400, to make coffee and “start the
coals,” then wake him up so “they would be ready for him to just get on his
[computer or video] game and start smoking his hookah.”
NM described the effect of Appellant’s behavior on her. She felt she couldn’t
do anything or go anywhere without his approval. She “would just go along
with whatever he wanted” and “[i]t almost seemed like he wanted to live [her]
life for [her].”
NM described several instances of Appellant’s violence towards her during
arguments in their home, including those for which Appellant was convicted.
At one point, Appellant slapped NM with an open hand (Specification 3 of
Charge II). She had tried to dodge the blow, which struck her on the eye, caus-
ing a bruise. On another occasion, Appellant pushed her onto the couch and
told her she could not get up. When she tried to get up, he pushed her back
down. NM said something that angered Appellant greatly, and he “got up and
he started beating down on [NM’s] head with both of his closed fists” (Specifi-
cation 4 of Charge II). She saw “stars,” and the next day had nausea, soreness,
and a headache. Another time, while NM sat on their bed, “something [NM]
had said caused him to lift his right foot and kick” NM, causing an open wound
on her big toe (Specification 6 of Charge II).
NM also described occasions when Appellant sexually assaulted her by pen-
etrating her anus. On the eve of her twenty-first birthday, Appellant and NM
went for a walk near their home. Appellant wanted to have sex outside, and
4
United States v. Schram, No. ACM 39751
NM reluctantly agreed. They engaged in vaginal sex, then Appellant pushed
his penis inside NM’s anus. She protested physically and verbally. Appellant
got angry with NM and finally stopped penetrating her. He threw across the
street a glass special to NM that she had been carrying. She retrieved the glass,
which hadn’t broken. Appellant convinced her to give it to him, denying he was
going to throw it. When she gave it to him, he threw it and it shattered. NM
then ran away down the road as he chased her, convinced he was trying to hit
her.
NM testified Appellant had anal sex with her multiple times against her
wishes. She recalled that it happened more than once in the shower:
I remember that, um, he was behind me and he wanted anal sex,
and he would hold me and just hold me there until he pushed
himself inside of me. And at this time I remember I was crying,
and I remember that it hurt, and he kept going until he finished.
And once he finished he got out of the shower, and I was in so
much pain that I could not move.
Whenever NM was asked about the causes of her injuries, or whether she
felt safe at home, she lied. When she went to the hospital for a possible concus-
sion, she “made up a story.” Because she falsely said she had been drinking
and must have blacked out when she fell and hit her head, she was required to
go to a local alcohol-treatment program. When she sought medical treatment
for her big toe, she said she stubbed her toe. She did not tell the truth “because
[she] knew that if [she] had told them that [Appellant] would most likely hurt
[her] more.”
NM did not report Appellant’s behavior to her family, friends, coworkers,
law enforcement, or medical personnel. She explained Appellant “monitored
everything [she] did.” When anyone asked, she affirmatively denied any abuse
at home.
NM had several reasons for staying in the relationship with Appellant. She
loved him. She was taught through her Christian faith that divorce was a last
resort. She believed Appellant when he told her she would never find someone
as good as him. She believed Appellant when he said he would not hurt her
again.
The Government offered testimony and documentary evidence to support
NM’s testimony. When they were apart, Appellant and NM communicated
with each other using Facebook Messenger. In messages between them, NM
told Appellant in a sarcastic tone that she was leaving work and going to the
hospital for a concussion, to which Appellant replied, “Awesome, is that why
the [S]hirt wants to talk to me?”
5
United States v. Schram, No. ACM 39751
In their testimony, the medical providers that NM saw for her head and
neck pain and her lacerated toe confirmed NM’s complaint of injury, as well as
her “story” about what caused the injuries. They also agreed NM’s injuries
were consistent with her allegations against Appellant. One provider believed
the head and neck pain was not consistent with a fall because she would expect
to see additional injuries. The Government introduced some evidence Appel-
lant may have been in the room when NM talked to the provider about her
head injury. The Government introduced the photo NM took of her lacerated
big toe and sent to her sister.
Some of NM’s coworkers saw Appellant’s controlling behavior in her work-
place and bruising to her upper arm. They noticed she started wearing her
uniform blouse in the hangar, even in the height of summer in Arizona, and
she stopped interacting with her male coworkers. In 2016, after her deploy-
ment, NM told her friend over the phone briefly that she “was forced to have
anal” with Appellant. In April 2017, around NM’s birthday, NM took a walk
with her sister around the neighborhood. NM emotionally pointed out things
related to the “incident,” including where her favorite glass broke.
Appellant and NM messaged each other after the sexual assault near the
home. NM reminded Appellant “it hurt” even as she “was saying wait[.]” Later
in this conversation, NM accused Appellant of going to see “[m]aybe someone
who likes it up the a[*]s" and further messaged, “You’ll be so much happier
then. My p[**]sy isn’t good enough for you.” 5 Appellant responded, “Lmmfao[ 6]
keep goin[g].”
The messages also corroborate NM’s characterization of Appellant being
very controlling of her. Topics include, inter alia, her manner of dress and un-
derwear, speaking to men, waking up early to prepare his coffee and hookah,
and accusing her of being a horrible wife. They also show Appellant monitoring
NM’s conversations, replying with profanity (e.g., “f[**]k [yo]u”), and calling
her derogatory names.
5The military judge instructed the members they could consider these statements of
NM only for the purpose of providing context for Appellant’s responses, or lack thereof,
and to put the entire conversation into context, but not for the truth thereof.
6 Testimony indicates this refers to laughing.
6
United States v. Schram, No. ACM 39751
2. Evidence Admitted Pursuant to Mil. R. Evid. 413 and 404(b) 7
The Government introduced Appellant’s previous convictions for violations
of Articles 120, 120b, and 128, UCMJ, 10 U.S.C. §§ 920, 920b, and 928. Specif-
ically, the evidence showed Appellant was found guilty of divers sexual as-
saults against EB (both penile/vaginal and penile/anal), and abusive sexual
contact of RM (touching her buttocks); sexual abuse of HS, a child (placing her
hand on his penis through the clothing); and assaults consummated by a bat-
tery against MZ (striking her head, choking her neck, pushing her body, and
grabbing her arms, all on divers occasions).
The members heard testimony of one of these victims, EB, admitted pursu-
ant to Mil R. Evid. 413. She testified about her relationship with Appellant,
whom she described as “really controlling.” Appellant texted her “all the time,”
controlled what she wore and who she talked to, insisted on knowing her pass-
words, and called her derogatory names. EB described occasions on which Ap-
pellant grabbed and pushed her, and sexually assaulted her vaginally and
anally, including in the shower. EB stayed with Appellant for two years be-
cause she “loved him, and [she] didn’t think that [she] would have anything
else after [she] left him” and she “tried to fix what was wrong with [her], or
what she thought was wrong with [her], because [she] loved him and [she]
thought he loved [her] too.”
The military judge provided the members instructions on evidence and tes-
timony admitted pursuant to Mil. R. Evid. 413 and 404(b). Regarding Appel-
lant’s sexual offenses against EB, HS, and RM, the military judge instructed
the members they could consider this evidence and testimony “for their ten-
dency, if any, to show [Appellant’s] propensity to engage in acts alleged in
Charge I and its specifications.” 8 Regarding other misconduct, the military
judge instructed the members they could consider evidence of Appellant’s phys-
ical or emotional abuse of NM, ML, 9 EB, and MZ for the limited purpose of
explaining Appellant’s intent and motive, if any, to dominate and control
7Appellant unsuccessfully moved to exclude evidence under Mil. R. Evid. 404(b) and
413. On appeal, Appellant does not challenge the military judge’s ruling and we find
no basis in the record to do so ourselves.
8He added that they could consider this evidence “for the limited purpose of explaining
[Appellant’s] intent and motive, if any, to dominate and control women within dating
and intimate relationships” and to determine Appellant’s “intent and motive, if any, to
commit any of the charged offenses in this court-martial.”
9ML testified to Appellant’s controlling behaviors as well as the substance of the sex-
ual offenses against her alleged under Charge I.
7
United States v. Schram, No. ACM 39751
women within dating and intimate relationships, and they could consider this
evidence in determining Appellant’s intent and motive, if any, to commit the
charged offenses. 10 He warned them they could not consider this evidence for
any other purpose, “unless identified separately by the Court,” nor conclude
from it that Appellant is a bad person or has general criminal tendencies and
therefore committed the offenses charged.
3. Law
We review issues of legal and factual sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual suffi-
ciency is limited to the evidence produced at trial. United States v. Dykes, 38
M.J. 270, 272 (C.M.A. 1993) (citations omitted).
“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), cert. denied, __ U.S. __, 139 S. Ct.
1641 (2019).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In
conducting this unique appellate role, we take ‘a fresh, impartial look at the
evidence,’ applying ‘neither a presumption of innocence nor a presumption of
guilt’ to ‘make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.’”
10The military judge also instructed the members they could consider evidence of phys-
ical and emotional abuse of the named victims “for its bearing, if any, on her decisions
regarding reporting the charged offenses and to rebut any charge that she recently
fabricated her allegations or has testified from a recent improper influence or motive.”
8
United States v. Schram, No. ACM 39751
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
For Appellant to be found guilty of sexual assault of NM in violation of
Article 120, UCMJ, as charged in Specification 5 of Charge I, the Government
was required to prove beyond a reasonable doubt that on divers occasions Ap-
pellant committed a sexual act upon NM by causing bodily harm to her, specif-
ically penetrating her anus with his penis, without her consent. 11 See Manual
for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 45.a.(b)(1). For
Appellant to be found guilty of assault consummated by a battery of NM in
violation of Article 128, UCMJ, as charged in Specifications 3, 4, and 6 of
Charge II, the Government was required to prove beyond a reasonable doubt
that Appellant did bodily harm to NM with unlawful force or violence. See
MCM, pt. IV, ¶ 54.b.(2). Specifically, the Government alleged that Appellant
struck NM on the face with his hand (Specification 3); struck NM on the head
with his hand on divers occasions (Specification 4); and kicked NM on the toe
with his foot (Specification 6).
4. Analysis
Appellant questions the legal and factual sufficiency of Specification 5 of
Charge I and Specifications 3, 4, and 6 of Charge II based solely on the credi-
bility of NM. Appellant’s attacks on NM’s credibility are not new; he raised
them at trial. We are convinced any rational trier of fact could have found the
essential elements of the crimes against NM of which Appellant was convicted
beyond a reasonable doubt.
The Government proved Appellant abused NM by striking her head multi-
ple times, striking her face, kicking her toe, and anally penetrating her on at
least two occasions. The Government proved these offenses primarily with
NM’s testimony, supported by medical testimony and records, as well as evi-
dence of other misconduct to explain Appellant’s intent and motive to dominate
and control women within dating and intimate relationships. The best expla-
nation for NM’s failure to report, denial of harm, and supporting Appellant
through trial and post-trial is Appellant’s control over her. Even when he was
confined, she acted in accordance with what she believed were his wishes. With
time and separation, that control dissipated.
11By specifically alleging the conduct was without consent, the Government was re-
quired to prove lack of consent in order for Appellant to be convicted. We note that to
prove “bodily harm,” the Government was required to prove an offensive touching,
which could include nonconsensual sexual contact. See MCM, pt IV, ¶ 45.a.(g)(3).
9
United States v. Schram, No. ACM 39751
We are unconvinced NM’s religious or romantic views provided a motive for
her to fabricate Appellant’s violence towards her. The evidence does not sup-
port Appellant’s claims that NM’s family would only approve of a divorce if NM
reported to law enforcement officials that Appellant sexually and physically
assaulted her. If NM needed an excuse to divorce Appellant, she could point to
his prolonged incarceration for sexual and physical offenses against a girl and
two young women. Similarly, it would be speculative to find that NM fabricated
Appellant’s violence to somehow advance her relationship with her then boy-
friend.
NM’s story was not “wildly inconsistent over time” as claimed. While she
lied during her marriage to Appellant about harm she suffered, she stayed con-
sistent in her later description of that harm. Finally, one easily could find that
the similarity between NM’s testimony and any previous victim’s testimony is
not because NM observed the previous victim testify four years earlier, but
because the women were abused by the same person in a similar way. We have
no reason to doubt the members followed the military judge’s instructions
about the allowable uses of other misconduct and propensity evidence. See
United States v. Stewart, 71 M.J. 38, 42 (C.A.A.F. 2012).
Considering the evidence in the light most favorable to the Prosecution, we
find that a rational factfinder could have found Appellant guilty beyond a rea-
sonable doubt of all the elements of Specification 5 of Charge I and Specifica-
tions 3, 4 and 6 of Charge II. Furthermore, after weighing all the evidence in
the record of trial and having made allowances for not having personally ob-
served the witnesses, we are convinced of Appellant’s guilt beyond a reasonable
doubt. Therefore, we find Appellant’s convictions both legally and factually suf-
ficient.
B. Challenge of the Military Judge
1. Additional Background
The military judge served as a senior trial counsel and as the Special Vic-
tims Unit Chief of Policy and Coordination from 2014 to 2016, in the two years
leading up to his assignment as a military judge. In that capacity, then Major
(Maj) Rosenow 12 was involved in drafting template responses for the govern-
ment on new legal issues, including challenges based on changes to prelimi-
nary hearings under Article 32, UCMJ, 10 U.S.C. § 832.
The military judge was detailed to Appellant’s court-martial on 8 Novem-
ber 2018. The next day, the military judge conducted a telephonic scheduling
In this opinion, we use “Maj Rosenow” when referring to the military judge when he
12
was a senior trial counsel.
10
United States v. Schram, No. ACM 39751
conference with counsel under Rule for Courts-Martial (R.C.M.) 802. Trial de-
fense counsel provided notice that Appellant would elect to be tried by officer
members. The military judge “alerted the parties to his brief and limited in-
volvement in the processing of [Appellant’s] previous court-martial” relevant
to whether he was disqualified. He had “no concerns about [his] ability to serve
as the detailed military judge.”
In the hearing leading to arraignment, trial defense counsel orally moved
for the military judge to recuse himself. After the military judge stated he was
aware of no grounds for challenge against him, he allowed counsel to question
him. Trial defense counsel elicited that trial counsel in the previous court-mar-
tial—who was the same trial counsel in the present court-martial—requested
a template response to an issue related to Appellant’s Article 32, UCMJ, hear-
ing. Also, a different prosecutor—whom Maj Rosenow knew when they were
defense counsel—reached out to him for a template on a different Article 32,
UCMJ, issue in that case. Maj Rosenow provided this prosecutor a template
response.
The military judge reviewed this court’s decision in Appellant’s previous
court-martial when it was released, as was his practice, and after he was de-
tailed to Appellant’s present court-martial as military judge. He read it again
the morning of the motion hearing “and it jogged nothing other than what [he]
remember[ed] from reading the appellate decision the last time.”
The military judge had looked through his files and found no indication of
involvement beyond providing those template responses. He stated he did not
discuss the merits of Appellant’s previous court-martial with those prosecutors
or provide tailored advice. He was not involved in charging. He did not super-
vise senior trial counsel or review their case reports. Even if he had more in-
volvement in Appellant’s case than he could remember at the time, “in terms
of independent recollection of Airman Schram, [he had] no recollection at all.”
After answering all of trial defense counsel’s questions, the military judge
stated, “If it wasn’t clearly implicated on the record before, my going-in posi-
tion, certainly, is that under [R.C.M.] 902 I have no concerns about my ability
to serve as an impartial military judge in this case. And I don’t believe that my
impartiality can be reasonably questioned.” He then allowed the Defense to
make an oral argument and gave them time to put a motion for recusal in writ-
ing. After receiving and considering those, the military judge denied Defense’s
motion. In his oral ruling, he stated, “I don’t have any concerns about any im-
partiality or bias towards or against any party, any knowledge of the case, or
anything that would be disqualifying under [R.C.M. 902’s] subsections. I also
don’t believe a member of the public fully informed could reasonably challenge
my impartiality in this case.” The military judge also issued a detailed written
ruling denying the defense motion.
11
United States v. Schram, No. ACM 39751
2. Law
We review a military judge’s decision not to recuse himself for an abuse of
discretion. See United States v. Sullivan, 74 M.J. 448, 454 (C.A.A.F. 2015). “A
military judge’s ruling constitutes an abuse of discretion if it is arbitrary, fan-
ciful, clearly unreasonable or clearly erroneous;” the standard is not merely if
we have a difference of opinion or would reach a different conclusion. Id. at 453
(citing United States v. Brown, 72 M.J. 359, 362 (C.A.A.F. 2013)) (internal quo-
tations marks omitted).
R.C.M. 902 governs disqualification of the military judge. R.C.M. 902(a)
requires disqualification “in any proceeding in which th[e] military judge’s im-
partiality might reasonably be questioned.” Disqualification pursuant to
R.C.M. 902(a) is determined by applying an objective standard of “whether a
reasonable person knowing all the circumstances would conclude that the mil-
itary judge’s impartiality might reasonably be questioned.” Sullivan, 74 M.J.
at 453 (citing United States v. Hasan, 71 M.J. 416, 418 (C.A.A.F. 2012)). In
addition, R.C.M. 902(b) sets forth five specific circumstances in which a “mili-
tary judge shall disqualify himself or herself,” including when “the military
judge has acted as counsel, preliminary hearing officer, investigating officer,
legal officer, staff judge advocate, or convening authority as to any offense
charged or in the same case generally.” R.C.M. 902(b)(2).
“An accused has a constitutional right to an impartial judge.” United States
v. Wright, 52 M.J. 136, 140 (C.A.A.F. 1999) (citations omitted). “There is a
strong presumption that a judge is impartial, and a party seeking to demon-
strate bias must overcome a high hurdle. . . .” United States v. Quintanilla, 56
M.J. 37, 44 (C.A.A.F. 2001) (citation omitted). A military judge “should not
leave a given case ‘unnecessarily.’” Wright, 52 M.J. at 141 (quoting R.C.M.
902(d)(1), Discussion). That is, a “judge has as much obligation not to disqual-
ify himself when there is no reason to do so as he does to disqualify himself
when the converse is true.” United States v. Kincheloe, 14 M.J. 40, 50 n.14
(C.M.A. 1982) (alterations, internal quotations, and citations omitted).
“Where the military judge makes full disclosure on the record and affirma-
tively disclaims any impact on him, where the defense has full opportunity to
voir dire the military judge and to present evidence on the question, and where
such record demonstrates that [an] appellant obviously was not prejudiced by
the military judge’s not recusing himself, the concerns of R.C.M. 902(a) are
fully met.” United States v. Campos, 42 M.J. 253, 262 (C.A.A.F. 1995) (citation
omitted).
3. Analysis
At the outset, we note the record does not show the military judge acted as
counsel, preliminary hearing officer, investigating officer, legal officer, staff
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United States v. Schram, No. ACM 39751
judge advocate, or convening authority as to any offense charged or in Appel-
lant’s case generally, which would be disqualifying under R.C.M. 902(b)(2).
On appeal, Appellant claims a “reasonable man, knowing that the military
judge in the present case was involved in helping the government successfully
prosecute Appellant in a prior case that is so interrelated to the present case,
might reasonably question the judge’s impartiality.” Additionally, he high-
lights that a prosecutor to whom Maj Rosenow sent a template was also a pros-
ecutor in Appellant’s second court-martial, and some of the victim-witnesses
are the same. Appellant states his “forum choice to not appear before Judge
[Rosenow] reflects that he was not unaffected by the appearance of partiality
in this case.”
We find the military judge did not abuse his discretion in denying the de-
fense motion to disqualify him from presiding over Appellant’s court-martial.
First, we disagree with Appellant that the military judge “was intimately in-
volved in Appellant’s first court-martial, and that he took a position in clear
contravention to Appellant’s interests involving an important and contested
trial matter” and “provided tactical level guidance.” Maj Rosenow provided to
prosecutors template responses based on the emergence of new legal issues and
with no knowledge of any specific facts of Appellant’s case. He knew nothing
about the charging scheme, the victims, or the witnesses. We see no evidence
the military judge knew the content of the filings in Appellant’s first court-
martial, the strategy the prosecutors chose, or whether they were successful.
He reviewed this court’s decision on appeal, as many other military justice
practitioners do, and had no recollection of any personal involvement in the
case.
We also disagree with Appellant’s assertion on appeal that “the role [the
military judge] played in Appellant’s previous case undoubtedly factored into
his decision to be tried by officer members, rather than [the military judge].”
We note that at the same conference in which the military judge disclosed his
limited participation relating to Appellant’s first court-martial, Appellant pro-
vided notice of his intent to be tried by officer members. This timing strongly
suggests Appellant did not factor in the military judge’s involvement in Appel-
lant’s previous case and instead had different reasons for choosing to be tried
by a panel of officers. Moreover, Appellant gave no indication that his forum
choice would change if his motion for the military judge to disqualify himself
was successful. See United States v. Oakley, 33 M.J. 27, 34 (C.A.A.F. 1991)
(finding no basis to conclude appellant did not get a fair trial based on forum
choice when appellant’s request for members had been signed before the mili-
tary judge denied his recusal motion, and he gave no affirmative indication
that he would have changed his request if his motion had been granted).
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United States v. Schram, No. ACM 39751
Finally, we find the concerns of R.C.M. 902(a) were fully met. See Campos,
42 M.J. at 262. The military judge gave full disclosure of his previous involve-
ment with Appellant’s previous court-martial, and provided a full opportunity
for counsel to question or “voir dire” him and to present evidence and argument
on the motion. Moreover, we see no indication in the record that Appellant was
prejudiced by the military judge’s failure to disqualify himself. See id.
Based on the foregoing, we find Appellant has not overcome the high hurdle
to demonstrate bias on the part of the military judge. We are satisfied that a
reasonable person knowing all the circumstances in this case would not ques-
tion the military judge’s impartiality.
C. Erroneous Advice to the Convening Authority
Appellant requests this court direct new post-trial processing or, in the al-
ternative, reduce Appellant’s period of confinement due to errors in the SJAR
and addendum thereto provided to the convening authority. We are not per-
suaded.
1. Additional Facts
The military judge sua sponte merged Specifications 1 and 2 of Charge I for
purposes of sentencing. He instructed the members that in determining an ap-
propriate sentence, they must consider them as one offense. He correspond-
ingly advised them that the maximum punishment to confinement was 81
years and 6 months. Before the merger, the maximum imposable confinement
was 101 years and 6 months.
Appellant was convicted of offenses committed as early as October 2011
and as recent as June 2015. During that period, Congress changed the law
governing what relief a convening authority could grant an appellant in clem-
ency. See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No.
113–66, § 1702, 127 Stat. 954–58 (2013) (codified at 10 U.S.C. § 860(c)(4)(A)).
For offenses before 24 June 2014, convening authorities had unfettered discre-
tion to grant clemency, including setting aside a finding of guilt. For offenses
on or after 24 June 2014, convening authority discretion was limited to a pre-
scribed set of circumstances. Because the specifications for which Appellant
was convicted included dates both before and after 24 June 2014, Appellant
was entitled to the convening authority’s unfettered discretion in clemency for
all convicted offenses. See National Defense Authorization Act for Fiscal Year
2015, Pub. L. No. 113–291, § 531(g)(2)(A), 128 Stat. 3292, 3365–66 (2014); see
also United States v. Rogers, 76 M.J. 621, 626 (A.F. Ct. Crim. App. 2017) (“We
will not conduct a post-trial dive below the charged dates to attempt to deter-
mine with certitude when an offense occurred for Article 60, UCMJ, pur-
poses.”).
14
United States v. Schram, No. ACM 39751
Despite the fact that one of the specifications Appellant was charged with
committing included an offense before 24 June 2014, the acting staff judge ad-
vocate erroneously advised the convening authority in the SJAR that he had
“the authority to approve or disapprove the finding of guilt for Charge I and all
Specifications except Specification 5” and “[f]or Charge II and its Specifications,
[he] only [had] the authority to approve the finding of guilt and cannot dismiss
the finding of guilt.” (Emphasis added). Regarding sentence, the SJAR cor-
rectly advised the convening authority he had “the authority to disapprove,
commute or suspend the adjudged sentence.”
In the Defense’s clemency submission, trial defense counsel did not correct
the error in the SJAR regarding the power of the convening authority to affect
the findings. Although trial defense counsel alleged errors at trial, the only
relief he requested from the convening authority was reduction or disapproval
of Appellant’s sentence to confinement. In the addendum to the SJAR, the staff
judge advocate did not correct the erroneous advice in the SJAR regarding the
convening authority’s power to affect the findings, but then provided incorrect
advice about the power he did have to affect Appellant’s sentence. The SJAR
misadvised that “[u]nder R.C.M. 1107(d)(1)(B), a convening authority may not
disapprove, commute, or suspend, in whole or in part, that portion of an ad-
judged sentence that includes confinement for more than six months or a dis-
honorable discharge” and that “[i]n this case, no exceptions to this rule exist.”
The convening authority approved Appellant’s sentence as adjudged.
Following Appellant’s assignment of error, we granted the Government’s
motion for leave to attach to its motion the convening authority’s declaration
regarding the effect of the erroneous advice he received from his acting staff
judge advocate in the SJAR and from the staff judge advocate in the adden-
dum. 13 In it, the convening authority stated his “action in this case would not
have been impacted had [he] received [accurate] advice at the time of clem-
ency.” He “considered all of the matters in clemency” at the time he took action,
and while he recognized Appellant’s mitigating evidence, “his offenses were
repeated and severe.” He concluded, “Considering the entirety of the record, I
am confident that I still would have approved the findings and sentence as
adjudged by the court-martial.”
2. Law and Analysis
“The proper completion of post-trial processing is a question of law the court
reviews de novo.” United States v. Zegarrundo, 77 M.J. 612, 613 (A.F. Ct. Crim.
13 We consider the convening authority’s declaration as necessary to resolve errors
“raised by the record but [ ] not fully resolvable by the materials in the record,” namely
the contradictory advice to the convening authority. United States v. Jessie, 79 M.J.
437, 442 (C.A.A.F. 2020).
15
United States v. Schram, No. ACM 39751
App. 2018) (citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Failure
to comment in a timely manner on matters in the SJAR or matters attached to
the SJAR waives or forfeits any later claim of error unless there was plain
error. Id. at 614; R.C.M. 1106(f)(6). In analyzing for plain error, we assess
whether “(1) there was an error; (2) it was plain or obvious; and (3) the error
materially prejudiced a substantial right.” Kho, 54 M.J. at 65 (citations omit-
ted). In terms of how an SJAR error potentially affected an appellant’s oppor-
tunity for clemency, the threshold for prejudice is low: there must be a colora-
ble showing of possible prejudice. United States v. Scalo, 60 M.J. 435, 437
(C.A.A.F. 2005). This low threshold “reflects the convening authority’s vast
power in granting clemency and is designed to avoid undue speculation as to
how certain information might impact the convening authority’s exercise of
such broad discretion.” Id.As the Government concedes the errors in the SJAR and addendum, our
analysis focuses solely on whether Appellant suffered prejudice. To be sure,
conflicting guidance from the staff judge advocate about the power the conven-
ing authority had to affect the findings and sentence should have generated
confusion. If the convening authority was confused about his ability to affect
the findings, we note Appellant did not request any findings be disapproved in
clemency. We find no colorable showing that the convening authority never-
theless may have done so if he had been accurately advised. Appellant did re-
quest the convening authority reduce or completely disapprove the sentence to
confinement. Without more, the conflicting guidance to the convening author-
ity might meet the low threshold for prejudice.
Whether an appellant was prejudiced by a mistake in the SJAR or the ad-
dendum generally requires a court to consider whether the convening author-
ity would have taken action more beneficial to the appellant had he or she been
provided accurate or more complete information. See United States v. Green,
44 M.J. 93, 95 (C.A.A.F. 1996); see also United States v. Harris, 52 M.J. 665,
670 (A. Ct. Crim. App. 2000). However, in this case we need not speculate about
the convening authority’s decision had he received clear and accurate advice.
We have no cause to doubt the convening authority’s declaration that he would
have approved the findings and sentence as adjudged. Based on our review of
the record and this declaration, we find “a properly prepared [SJAR and] ad-
dendum to the recommendation would not have resulted in beneficial action by
the convening authority.” Harris, 52 M.J. at 670. As Appellant is unable to
demonstrate a colorable showing of possible prejudice, we find he cannot pre-
vail on this issue. Scalo, 60 M.J. at 436–37.
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III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
17