United States v. Grant ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Jayson W. GRANT
Chief Operations Specialist (E-7), U.S. Navy
Appellant
No. 201900212
Decided: 25 January 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Arthur L. Gaston III
Sentence adjudged 12 February 2019 by a general court-martial con-
vened at Naval Support Activity Naples, Italy, consisting of a military
judge alone. Sentence approved by the convening authority: confine-
ment for four years and a dishonorable discharge.
For Appellant:
Bethany L. Payton-O’Brien, Esq.
Lieutenant Daniel O. Moore, JAGC, USN
For Appellee:
Lieutenant Jennifer Joseph, JAGC, USN
Lieutenant Joshua C. Fiveson, JAGC, USN
Chief Judge MONAHAN delivered the opinion of the Court, in which
Senior Judge STEPHENS and Judge DEERWESTER joined.
United States v. Grant, NMCCA No. 201900212
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
MONAHAN, Chief Judge:
Appellant was convicted, consistent with his pleas, of one specification of
attempted sex trafficking1 and one specification of attempted labor trafficking
in violation of Title 18, United States Code [U.S.C.],2 assimilated under
Article 134 of the Uniform Code of Military Justice [UCMJ].3
Appellant raises four assignments of error [AOEs]:4 (1) Appellant’s guilty
pleas were improvident because his actions did not reflect a substantial step
towards the commission of the target offenses and the record does not reflect
the use of fraud or coercion; (2) trial defense counsel [TDC] provided ineffec-
tive assistance of counsel by his failure to explore possible Article 13, UCMJ,
credit based upon pretrial events and conditions, and because TDC’s in-
volvement in the Naval Criminal Investigative Service [NCIS] investigation
in Bahrain caused a conflict of interest that he was required to disclose to
Appellant; (3) Appellant’s sentence was inappropriately severe;5 and
(4) Appellant’s guilty plea was involuntary because he was not advised by
1 After accepting Appellant’s pleas and finding him guilty of two specifications of
sex trafficking under different theories of criminal liability, the military judge sua
sponte merged these two specifications to remedy an unreasonable multiplication of
charges.
2 Sex trafficking is an offense under 18 U.S.C. § 1591 (2012). Labor trafficking is
an offense under 18 U.S.C. § 1590 (2012). An attempt to commit either offense is
punishable under 18 U.S.C. § 1594 (2012).
3 10 U.S.C. § 934 (2012).
4 We have renumbered and, with regard to Appellant’s ineffective assistance of
counsel claims, combined Appellant’s AOEs.
5 This assignment of error subsumes an AOE raised by a different military appel-
late defense counsel who represented Appellant before he hired civilian appellate
defense counsel and obtained representation by his current military appellate
defense counsel.
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Opinion of the Court
TDC that a conviction for sex trafficking would require sex offender registra-
tion.6 We find no prejudicial error and affirm.
I. BACKGROUND
A. Substance of Appellant’s Offenses
1. Appellant and Jamie plan a financial enterprise
While stationed in Bahrain, Appellant maintained an account on Tinder,
a dating application that “matches” users when both users view each other’s
profiles and affirmatively indicate that they want to exchange messages with
each other. In September 2017, an NCIS Special Agent posing as a woman
named “Jamie” began a Tinder conversation with Appellant. After Jamie
indicated that she was a prostitute, Appellant asked if she knew anyone who
needed a room to rent and that he had one available. Jamie responded that
she could get a woman from Thailand to live with him, and that the woman
could make money for him. When Appellant inquired how much money the
woman could make and when she could start, Jamie answered that she
needed to “procure” a Thai woman, the woman could make as much as 120
Bharani Dinar [BD] ($318) per night, that he could hold the woman’s pass-
port and the woman would stay with him.
Appellant and Jamie further developed their plan by taking their text
conversation from Tinder to WhatsApp, another application that allows users
to send text messages. During the course of their conversation on WhatsApp,
Appellant and Jamie discussed a plan whereby Jamie would import three
Thai women into Bahrain and he would house them. The women would work
in Bahrain as prostitutes, and Appellant would receive a portion of their
daily earnings. Specifically, Jamie told Appellant, “They Do sex and make u
Money.”7 Jamie also told Appellant, “U have their passport so they work as
long as u want.”8 When Appellant asked Jamie when they could start this
venture, she replied, “Very soon . . . Boss will traffic girls here to Bahrain.”9
During the course of the conversation, Appellant said that the Thai women
6 This AOE was raised pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982). We have reviewed this assigned error and find it to be without merit.
United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
7 Pros. Ex. 1 at 26.
8 Id. at 29.
9 Id. at 29-30.
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Opinion of the Court
would also need to clean his house. When Appellant reiterated his question
when they could begin, Jamie said, “Can u meet with Boss next Week? That
is last step[.] He just need to See u before purchasing girls[.]”10 After Appel-
lant asked Jamie if she was “law enforcement or affiliated with law enforce-
ment”11 and she said no, he agreed to meet with “the Boss.”12
2. Appellant discusses details of the enterprise with “the Boss”
In early October 2017, Appellant met with an undercover NCIS Special
Agent, who pretended to be Jamie’s boss “C.A.,” at a bar located in Manama,
Bahrain, and who surreptitiously recorded the meeting.13 The purpose of this
meeting was for Appellant to discuss details of the enterprise to harbor Thai
women and to profit from their commercial sex acts, as well as to confirm
Appellant’s intent to participate in this venture. During their conversation,
C.A. confirmed that in exchange for housing the three Thai prostitutes,
Appellant would receive half their earnings, be entitled to have sex with the
prostitutes whenever he wanted, and have the women cook for him and clean
his apartment. C.A. also assured Appellant that he [Appellant] would hold
the women’s passports, meaning that Appellant could control the women by
refusing to allow them to have the means to leave Bahrain or otherwise
engage in international travel. C.A. further explained that Jamie would text
Appellant each night to report his expected share of the women’s earnings
from the evening. Additionally, Appellant could designate a place for the
women to place his earnings if he was asleep or not at home. At the end of
their conversation, C.A. told Appellant that Jamie would contact him and let
him know what time the next day that she would be dropping off the three
Thai prostitutes to Appellant’s house. Appellant replied, “Okay cool.”14
10 Id. at 32.
11 Id. at 33.
12 Screenshots of all relevant WhatsApp text conversations between Appellant
and Jamie were appended as enclosures to the stipulation of fact, Prosecution Exhibit
1.
13 A transcript of this recording was appended as an enclosure to the stipulation
of fact, Prosecution Exhibit 1. A copy of the recording itself was admitted as Prosecu-
tion Exhibit 8.
14 Pros. Ex. 1 at 19.
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Opinion of the Court
3. Appellant confirms with Jamie his intent to execute enterprise
After meeting with C.A., Appellant texted Jamie thanking her for arrang-
ing the meeting and indicated he wanted to move forward with the plan.
Their exchange was as follows:
Appellant: Thank you for the meet with CA.
Jamie: No problm, u want me to Drop them off at ur place
tomorrow
Appellant: Yes. And tomorrow when we meet I have some more
business to talk to you about. With more girls.
Jamie: No problm ur friends need girls too?
Jus let US know
Appellant: Yes
Jamie: No problm easy, u can give me their numbers
Make Sure u get money for referral
Appellant: What time will my girls be in?
Who do I get the referral money from?
My friend says he wants 2 girls and they could move
in as soon as possible.
Jamie: Very good, Ca will be happy. I will get you Referat
Money
Wat ur address for later?
Appellant: [Provides his address.]
Around what time will you be able to drop them off
and do they know what is expected of them.
Jamie: U let me know when u off work and I bring them
They know but be firm u know? They know they
belong to u
Appellant: Ok. Sounds like a plan.
Also can you let them know that you will be sending
me a text letting me know how much they will owe me
each night and that if I am not home to just slide the
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Opinion of the Court
money under my bedroom door when they get in from
work.
Jamie: Yes15
B. Trial Defense Counsel
In a sworn, post-trial declaration, Appellant made a number of assertions
about his TDC, Lieutenant Commander [LCDR] Bravo.16
1. Appellant’s assertions concerning LCDR Bravo and the NCIS sex traf-
ficking sting operation
According to Appellant, in the spring of 2018, while assigned in Norfolk,
Virginia, awaiting his court-martial, Appellant learned from other Sailors
under investigation by NCIS, that LCDR Bravo was flagged in an NCIS
investigation. Specifically, he learned that LCDR Bravo had a Tinder profile
during the relevant period of Appellant’s misconduct in Bahrain, and NCIS
tried to connect with LCDR Bravo during their Bahrain sex trafficking sting
operation. Appellant asserted that LCDR Bravo did not inform him about his
role in the NCIS investigation and did not give him any information as to
why his name was included in an NCIS investigation.
Appellant’s civilian appellate defense counsel learned during her post-
trial investigation that LCDR Bravo had been contacted via Tinder by NCIS
agents posing as a prostitute during their sting operation. Appellant’s civilian
appellate defense counsel also spoke to Captain [CAPT] Charlie, the Fifth
Fleet staff judge advocate, who said that he reviewed a report that mentioned
LCDR Bravo but that CAPT Charlie never provided the report to
LCDR Bravo’s chain of command or to LCDR Bravo himself. CAPT Charlie
told civilian appellate defense counsel that he believed the report was a
“General Criminal” investigative report and not a report in which Appellant
was named as the subject. CAPT Charlie advised civilian appellate defense
counsel that a copy of this report was provided to the trial counsel in Appel-
lant’s case.
Civilian appellate defense counsel explained the potential conflict issue
concerning LCDR Bravo to Appellant while he was in the brig after trial.
After receiving this explanation, Appellant made several assertions concern-
15 Id. at 44-47.
16 All names in this opinion, other than those of Appellant, the judge, and appel-
late counsel, are pseudonyms.
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ing LCDR Bravo. He claimed that he was sure he would not have agreed to
keep LCDR Bravo as his counsel if he had known at the time the full extent
of the issue. Appellant further stated that looking back on the case, LCDR
Bravo consistently pressured Appellant to plead guilty, and Appellant did not
feel LCDR Bravo was fully on his side. LCDR Bravo—again, according to
Appellant—gave the impression there was no other option than to take the
Government’s offered deal because it was the best thing to do with the least
collateral damage. According to Appellant, LCDR Bravo eventually told
Appellant the decision whether to go to trial was ultimately up to Appellant
himself. LCDR Bravo further told Appellant that he would lose all his bene-
fits and be a felon, but never mentioned to Appellant the possibility that he
might have to register as a sex offender or participate in any treatment
programs.
Appellant avers that had he been informed about the conflict with
LCDR Bravo as his counsel or fully understood the issue at the time of his
trial, he would not have agreed to LCDR Bravo remaining as his detailed
military counsel, because his name was in a NCIS report and he had been
contacted by undercover NCIS agents on Tinder during their sex trafficking
sting in Bahrain. Other Sailors had similar cases arising out of Bahrain, and
none were represented by LCDR Bravo. Although their cases were “more
damning,”17 with victims or witnesses, all received more favorable outcomes
at their trials than Appellant, whose case only involved undercover agents.
Appellant further asserted that, although the trial counsel was in posses-
sion of the NCIS report, which included LCDR Bravo’s name or title,
LCDR Bravo was never provided the NCIS report that named him as a
potential target of their Tinder sting. As a result of never seeing or reviewing
the report, Appellant does not know the details of the communications NCIS
had with LCDR Bravo on Tinder during their sting. Appellant’s civilian
appellate defense counsel also interviewed the commanding officer and senior
defense counsel of the Defense Service Office to which LCDR Bravo was
assigned. Neither was in possession of the NCIS report naming LCDR Bravo
as a person who was contacted by NCIS on Tinder during the sting, nor had
they reviewed it prior to making a determination about any potential conflict
of interest related to LCDR Bravo’s representation of Appellant. To Appel-
lant’s knowledge, LCDR Bravo did not file a motion to compel the NCIS
report that included his name. Trial counsel did not respond to civilian
17 Appellant’s Mot. to Attach, encl. (Declaration of Appellant, July 2, 2020).
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Opinion of the Court
appellate defense counsel’s emails on this issue aimed at obtaining a copy of
the NCIS report that contained LCDR Bravo’s name or title.
2. Appellant’s assertions concerning LCDR Bravo’s failure to pursue a mo-
tion for illegal pretrial punishment
In Appellant’s declaration, he also asserts that various adverse actions
were taken against him prior to trial and that his TDC never advised him
that he could pursue an Article 13, UCMJ, motion for illegal pretrial punish-
ment. According to Appellant, in October 2017, after the NCIS investigation
involving him came to light, he was placed on Class “B” liberty risk, despite
no evidence that he had committed any further misconduct. This liberty risk
status entailed restrictions against leaving base, a requirement to travel to
and from duty without any stops except for grocery shopping or attending
church, a phone muster when he returned to his room at night, face-to-face
musters at 0800 and 2200 on non-duty days, and the requirement to remain
in his room in between the two musters. Appellant’s command prohibited him
from purchasing alcohol and confiscated his passport. These liberty risk
conditions remained in place until November or December 2017, despite no
pending charges.
In mid-January 2018, Appellant’s leave request was approved. However,
shortly afterwards, Commander, U.S. Navy Forces, Central Command
[COMNAVCENT] conducted an all hands call and gave a speech regarding
the investigations into Sailors in Bahrain engaged in sex trafficking. Within
a few days of COMNAVCENT’s visit, Appellant was told that his leave
request was now denied.
In mid-February 2018, Appellant was informed that he was being placed
onto Class “C” liberty risk status, and that “the Admiral” had made this
decision.18 Appellant did not know the reason for this change because there
had been no problems since he had been removed from liberty risk in Novem-
ber or December 2017. This elevated liberty risk status imposed even further
restrictive conditions. Appellant was again not allowed off base and was
required to participate in a face-to-face muster at 0730 on duty days. He was
then required to participate in face-to-face musters at 1600 and 2000, and
18 In his sworn declaration, Appellant did not specify the admiral to which he was
referring. We infer that he was referring to COMUSNAVCENT, who was not the
convening authority in this case, and is not in the chain of command of Commander,
Navy Region Europe, Africa, Southwest Asia, the flag officer who did serve as the
convening authority.
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Opinion of the Court
upon return to his room after the 2000 face-to-face muster, to conduct a
telephone muster. On non-duty days, he was required to participate in face-
to-face musters at 0730 and 2000 and again after returning to his room
following the 2000 face-to-face muster. Appellant remained in Class “C”
liberty risk until after charges were preferred against him in mid-March
2018.
After charges were preferred, Appellant was transferred to Transient
Personnel Unit Norfolk, Virginia. There, he was assigned duties not commen-
surate with his paygrade, such as trash cleanup, stripping and waxing floors,
cutting grass and other lawn maintenance, and painting and construction
projects. All of these duties were performed under the supervision of petty
officers in pay-grades E-5 and E-6. These circumstances continued until his
trial in February 2019, almost one year later.
Appellant provided LCDR Bravo copies of his liberty risk/restriction or-
ders soon after he received them. However, LCDR Bravo never advised
Appellant that he could file a motion for confinement credit under Article 13,
UCMJ, for illegal pretrial punishment.
II. DISCUSSION
A. Appellant’s Guilty Pleas Were Provident
1. Standard of review and the law
The standard of review in determining whether a guilty plea is provident
is whether the record provides a substantial basis in law and in fact to
question it.19 A guilty plea must be supported by a sufficient factual basis.20
In determining whether a guilty plea is provident, the military judge may
consider the facts contained in the stipulation of fact along with the inquiry of
Appellant on the record.21
18 U.S.C. §§ 1590-91 outlaw labor and sex trafficking, respectively, by
force and other prohibited means. 18 U.S.C. § 1594 provides that an attempt
to violate either § 1590 or § 1591 shall be punishable in the same manner as a
completed violation.
19 United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).
20 United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
21 United States v. Whitaker, 72 M.J. 292, 293 (C.A.A.F. 2013).
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An attempt requires both an intent to commit the predicate offense, and a
“substantial step” toward its completion.22 A substantial step must be some-
thing more than mere preparation, yet may be less than the last act neces-
sary before the actual commission of the substantive crime.23 As the United
States Court of Appeals for the Eighth Circuit has explained:
In order for behavior to be punishable as an attempt, it need
not be incompatible with innocence, yet it must be necessary to
the consummation of the crime and be of such a nature that a
reasonable observer, viewing it in context could conclude be-
yond a reasonable doubt that it was undertaken in accordance
with a design to violate the statute.24
The Court of Appeals for the Armed Forces has distinguished an attempt
as going beyond “devising or arranging the means or measures necessary for
the commission of an offense,” and instead, engaging in a “direct movement
toward the commission after preparations are made.”25
2. Appellant took substantial steps toward the commission of the offenses
Appellant contends that there is a substantial basis in law and fact to
question the military judge’s acceptance of his pleas of guilty. Specifically, he
asserts that his action in meeting with C.A. did not amount to a substantial
step towards the commission of the offenses of sex or labor trafficking. Ra-
ther, he argues that his meeting with C.A. was for the purpose of merely
continuing to arrange the means or measures necessary for the commission of
the offense, and that his conversation with the undercover agent demon-
strates that preparations to commit the offenses at issue were still ongoing.
We find Appellant’s argument on this issue to be unpersuasive. As con-
tained in the transcript of the recording of the meeting between Appellant
and C.A., whom Appellant understood to be “the Boss” in a sex trafficking
scheme, they discussed in depth myriad details on how the scheme would
work. Specifically, they agreed that three women would be brought from
Thailand to work as prostitutes in Bahrain, that these women would live in
Appellant’s apartment, and that he would receive half of their nightly earn-
22 United States v. Larive, 794 F.3d 1016, 1019 (8th Cir. 2015).
23 Id.24 Id. (quoting United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987)).
25 United States v. Hale, 78 M.J. 268, 271 (C.A.A.F. 2019) (quoting United States
v. Schoof, 37 M.J. 96, 103 (C.M.A. 1993)).
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Opinion of the Court
ings from prostitution. They discussed that the women would also cook for
Appellant and clean his apartment, and that Appellant would hold the
women’s passports so that he could exercise control over them. C.A. further
told Appellant that Jamie would text Appellant each night to tell him how
much money to expect from the women for his share of their night’s earnings
as a prostitute, and that Appellant could designate a place for the women to
place his earnings if he was asleep or not at home. At the end of their conver-
sation, C.A. told Appellant that Jamie would contact him and let him know
what time the next day that she would be dropping off the three Thai prosti-
tutes to Appellant’s house. To this, Appellant replied, “Okay cool.”26 Under
these circumstances, we find Appellant’s discussion with C.A., culminating
with Appellant giving C.A. the green light to commence the sex / labor traf-
ficking enterprise after discussing all the salient details with him, to be more
than mere preparation. Indeed, it was a direct movement towards the com-
mission of the offenses after preparations were made.
Assuming, arguendo, that Appellant did not take a substantial step to-
wards commission of the offenses at the end of his conversation with C.A., he
certainly did so shortly thereafter when he texted Jamie to thank her for
setting up the meeting with C.A. During that text conversation, which is also
attached as an enclosure to the stipulation of fact, Appellant explicitly agreed
to have Jamie drop the three Thai women off at his apartment the next day
so that they could begin the sex / labor trafficking enterprise. Additionally,
Appellant asked Jamie to ensure the women knew that she would be sending
him a nightly text with how much they would owe him, and providing in-
structions that if he was not home, “to just slide the money under [his]
bedroom door when they get in from work.”27 Without question, Appellant’s
actions during this conversation constitute him engaging in a direct move-
ment toward the commission of the offenses at issue after preparations had
been made.28 Therefore, there is no substantial basis in law or in fact to
question the military judge’s acceptance of Appellant’s pleas of guilt.29
26 Pros. Ex. 1 at 19.
27 Id. at 47.
28 Our conclusion is consistent with civilian federal case law that has found
online conversations with undercover agents or actual minors sufficient to satisfy the
substantial step element for the offenses of attempted sex trafficking, see, e.g., United
States v. Larive, 794 F.3d. 1016, 1019 (8th Cir. 2015) (appellant’s online conversation
with an adult to arrange sex with a minor and travel to an arranged place to meet a
minor each constitute substantial steps); United States v. Brinson, 772 F.3d. 1314,
1326-27 (10th Cir. 2014) (appellant’s Facebook discussion with actual minor consti-
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Opinion of the Court
B. Appellant Fails to Establish Ineffective Assistance of Counsel
1. Standard of review and the law
We review claims of ineffective assistance of counsel de novo.30 In Strick-
land v. Washington,31 the Supreme Court laid out the test that guides our
analysis. In order to prevail on such a claim, “an appellant must demonstrate
both (1) that his counsel’s performance was deficient, and (2) that this defi-
ciency resulted in prejudice.”32 The Appellant bears the “burden of establish-
ing the truth of factual matters relevant to the claim.”33 Only after an appel-
lant has met his burden and has demonstrated both deficiency and prejudice
can we find in the appellant’s favor on an ineffective assistance of counsel
claim. “If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice . . . that course should be followed.”34
Conflicts of interest do not necessarily demonstrate prejudice under
Strickland’s second prong.35 But when an appellant can show “that a conflict
of interest actually affected the adequacy of his representation, [he] need not
demonstrate prejudice in order to obtain relief.”36
tutes a substantial step), and attempted enticement of minors to engage in sexual
activity, see, e.g., United States v. Spurlock, 495 F.3d. 1011, 1014 (8th Cir. 2007)
(appellant’s online and telephone conversations with undercover agent satisfied
substantial step element).
29To the extent that Appellant’s AOE asserts that the record does not reflect the
use of fraud or coercion in the sex / labor trafficking enterprise, due to the fact that
the scheme entailed Appellant holding on to the women’s passport so that he could
control them, we summarily reject Appellant’s argument. See Matias, 25 M.J. at 363.
30 United States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018).
31 466 U.S. 668 (1984).
32United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466
U.S. at 687).
33Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008), aff’d, 556 U.S. 904,
(2009).
34 Strickland, 466 U.S. at 697.
35 United States v. Saintaude, 61 M.J. 175, 180 (C.A.A.F. 2005).
36 Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 64 L. Ed. 2d 333(1980) (citation omitted); see also United States v Hale, 76 M.J. 713, 722 (N-M. Ct.
Crim. App.) (holding that an appellant is entitled to presumption of prejudice where
his counsel labored under an actual conflict of interest, and where the conflict had an
adverse effect on the counsel’s performance), aff’d, 77 M.J. 138 (C.A.A.F. 2017).
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A potential conflict exists if the interests of an accused may place the de-
fense counsel under inconsistent duties at some time in the future.37 Such
potential conflicts of interest include purely speculative allegations of conflict,
which warrant no presumption of prejudice.38 An actual conflict is a neces-
sary but insufficient prerequisite to benefit from a presumption of prejudice. 39
A conflict of interest is actual, as opposed to potential, when, during the
course of the representation, “the attorney’s and [accused’s] interests diverge
with respect to a material factual or legal issue or to a course of action.”40
2. Appellant fails to demonstrate prejudice with regard to a potential mo-
tion brought under Article 13, UCMJ
In this case we need not determine whether the TDC’s performance was
deficient with regard to a potential motion for confinement credit due to
illegal pretrial punishment. Even assuming arguendo deficient performance,
Appellant fails to demonstrate prejudice. After agreeing in online conversa-
tions with one undercover NCIS agent and an in-person, recorded meeting
with another to participate in a sex / labor trafficking venture, Appellant
faced a very strong case against him with enormous punitive exposure—
including a maximum of confinement for life. His TDC successfully negotiat-
ed a pretrial agreement that would suspend any adjudged confinement in
excess of five years, and then presented a strong sentencing case, which
resulted in Appellant “beating the deal” by receiving an adjudged sentence
that included only four years of confinement.
As consideration to enter into this pretrial agreement, TDC tendered an
offer that included a provision to waive all motions except those that were
otherwise non-waivable.41 During the military judge’s discussion with Appel-
lant about this term of his pretrial agreement, the military judge and TDC
had the following colloquy:
TDC: Sir, if I could just add in relation to this paragraph,
it’s a pretty standard paragraph in a PTA. In drafting
the PTA I wanted to draft one that was likely to be ac-
cepted.
37 Hale, 76 M.J. at 722.
38 Id.
39 Id.
40 Id. (quoting United States v. Perez, 325 F.3d 115, 125 (2d Cir. 2003)).
41 R. at 146.
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Opinion of the Court
MJ: No, I understand that. It’s been in every PTA that I
have ever seen.
TDC: I think the government would have required it if I had
not drafted it in the PTA.42
We are somewhat concerned that TDC apparently neither discussed a po-
tential Article 13, UCMJ, motion with Appellant, nor indicated he considered
raising such a motion when asked by the military judge on the record. How-
ever, in the end we cannot find any prejudice from TDC’s inaction. Specifical-
ly, we agree with TDC’s assertion on the record that it would have been very
unlikely in this case that the Government would have positively endorsed
and the convening authority would have agreed to allow Appellant to enter
into a pretrial agreement that did not require him to “waive all waivable
motions” including one raised under Article 13, UCMJ. Moreover, even if
Appellant had not been required under the terms of his deal to waive that
motion, we believe that it is speculative that he would have prevailed on it,
and if he did, that he would have received more than de minimis confinement
credit as compared to his adjudged sentence. For these reasons, we find
Appellant’s ineffective assistance of counsel claim with regard to a potential
Article 13, UCMJ motion to be without merit.
3. Appellant fails to demonstrate that TDC labored under an actual con-
flict of interest in this case
Appellant contends that his TDC labored under an actual conflict of in-
terest in this case because he was contacted on Tinder by an undercover
NCIS agent posing as a prostitute in the same manner as Appellant. Appel-
lant further avers that TDC neither sought out the NCIS report containing
his name or title nor informed Appellant of its existence. Appellant argues
that rather than reveal to him the circumstances of his Tinder profile, TDC’s
interests were in preserving his professional reputation and avoiding embar-
rassment at being involved in an undercover investigation into commercial
sex trafficking and prostitution. Appellant asserts that TDC’s interests
necessarily diverged from his own in uncovering evidence related to NCIS’s
conduct and investigation to the greatest extent possible.
However, Appellant is unable to establish that his and LCDR Bravo’s in-
terests diverged with respect to a material factual or legal issue. LCDR Bravo
maintained a profile on Tinder, a legal online dating application. And alt-
42 R. at 147.
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Opinion of the Court
hough an undercover NCIS agent posing as prostitute apparently reached out
to him through Tinder, there is no evidence in the record, to include Appel-
lant’s post-trial declaration, that LCDR Bravo engaged in any illegal activity
or that NCIS believed that he engaged in illegal activity in connection with
their sex trafficking sting operation. There is also no evidence in the record,
beyond speculation by Appellant in his post-trial declaration, that LCDR
Bravo feared professional or reputational embarrassment because an under-
cover NCIS agent posing as a prostitute had reached out to him on Tinder.
Finally, there is no evidence that LCDR Bravo—or his command—was even
aware that an NCIS investigative report existed containing his name or title
in conjunction with the sting operation. For these reasons, we find that LCDR
Bravo did not operate under an actual conflict of interest in this case.43
Therefore, Appellant does not benefit from a presumption of prejudice in
connection with his claim of a conflict of interest between him and his TDC.
4. Appellant fails to demonstrate prejudice due to the potential conflict of
interest arising from an undercover NCIS agent contacting LCDR Bravo on
Tinder
Having found that there was no actual conflict of interest, we next look to
see if Appellant establishes actual prejudice based on the circumstances of an
undercover NCIS agent posing as a prostitute reaching out to his TDC on
Tinder. Appellant asserts that because of this purported conflict of interest,
LCDR Bravo failed to seek reports from other NCIS investigations resulting
from the undercover operation that might have exposed a pattern of behavior
supporting an entrapment defense. Further, Appellant argues that the
communications LCDR Bravo had with the undercover agent may have
formed a basis for LCDR Bravo to be a witness for the Defense. However, we
find no merit in these arguments. All of Appellant’s interactions with the
undercover NCIS agents in this case were recorded, either through screen-
shots of his text messages with Jamie or through an audio / visual recording
of his in-person meeting with C.A. Therefore, we find no relevance between
an undercover NCIS agent’s interactions with LCDR Bravo on Tinder to a
possible entrapment defense in Appellant’s case. Likewise, we discern no
potentially relevant testimony that LCDR Bravo could offer in Appellant’s
case based on his prior experience being contacted by an NCIS undercover
agent on Tinder. For these reasons, we find no prejudice due to the potential
43 See Hale, 76 M.J. at 722.
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Opinion of the Court
conflict of interest that arose under these circumstances, and thus, deny any
relief due to that potential conflict of interest.44
C. Appellant’s Sentence Is Not Inappropriately Severe
1. Standard of review and the law
We review sentence appropriateness de novo.45 Each “court-martial is free
to impose any [legal] sentence it considers fair and just.”46 Therefore, “[t]he
military system must be prepared to accept some disparity . . . provided each
military accused is sentenced as an individual.”47 In execution of this highly
discretionary function, we are neither required to, nor precluded from,
considering sentences in other cases, except when those cases are “closely
related.”48 As a general rule “sentence appropriateness should be determined
without reference to or comparison with the sentences received by other
offenders.”49 Notably one narrow exception to this general principle of non-
comparison exists as we are “required . . . ‘to engage in sentence comparison
with specific cases . . . in those rare instances in which sentence appropriate-
ness can be fairly determined only by reference to disparate sentences ad-
judged in closely related cases.’ ”50 When requesting relief by way of this
exception, an appellant’s burden is twofold: the appellant must demonstrate
“that any cited cases are ‘closely related’ to his or her case and that the
resulting sentences are ‘highly disparate.’ ”51 If the appellant succeeds on
both prongs, then the burden shifts to the government to “show that there is
a rational basis for the disparity.”52
For cases to be considered closely related, “the cases must involve offenses
that are similar in both nature and seriousness or which arise from a com-
44 See Strickland, 466 U.S. at 697.
45 United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
46 United States v. Turner, 14 C.M.A. 435, 437, 34 C.M.R. 215, 217 (C.M.A. 1964).
47 United States v. Durant, 55 M.J. 258, 261 (C.A.A.F. 2001) (citations omitted).
48United States v. Ballard, 20 M.J. 282, 286 (C.M.A. 1985); United States v.
Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001).
49 Ballard, 20 M.J. at 283 (citations omitted).
50 Wacha, 55 M.J. 266, 267 (citations omitted).
51 United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999).
52 Id.16
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Opinion of the Court
mon scheme or design.”53 This threshold requirement can be satisfied by
evidence of “co[-]actors involved in a common crime, servicemembers involved
in a common or parallel scheme, or some other direct nexus between the
servicemembers whose sentences are sought to be compared . . . .”54
When assessing disparity among sentences, we look only to adjudged sen-
tences, rather than those approved or bargained for in a pre or post-trial
agreement: “[a]djudged sentences are used because there are several inter-
vening and independent factors between trial and appeal—including discre-
tionary grants of clemency and limits from pretrial agreements—that might
properly create the disparity[.]”55 Accordingly, we “generally refrain from
second guessing or comparing a sentence that flows from a lawful pretrial
agreement or a [convening authority’s] lawful exercise of his authority to
grant clemency to an appellant.”56
We acknowledge disparity among sentences may arise from “differences
in initial disposition rather than sentence uniformity.”57 However, “[m]ilitary
commanders stationed at diverse locations throughout the world have broad
discretion to decide whether a case should be disposed of through administra-
tive, non-judicial, or court-martial channels.”58 Therefore, if “cases are closely
related, yet result in widely disparate disposition, we must instead decide
whether the disparity in disposition results from good and cogent reasons.” 59
Apart from the comparative analysis, we are nevertheless able to evaluate
an appellant’s sentence on its own facts as part of our required due diligence
under Article 66(d), UCMJ. “Sentence appropriateness involves the judicial
function of assuring that justice is done and that the accused gets the pun-
ishment he deserves.”60 This requires our “individualized consideration of the
53 United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994).
54 Lacy, 50 M.J. at 288-89 (finding cases were closely related “where appellant
and two other Marines engaged in the same course of conduct with the same victim
in each other’s presence”).
55 United States v. Roach, 69 M.J. 17, 21 (C.A.A.F. 2010).
56 United States v. Widak, No. 201500309, 2016 CCA LEXIS 172, at *7, (N-M. Ct.
Crim. App. Mar. 22, 2016) (unpublished) (per curiam) (citations omitted).
57 United States v. Noble, 50 M.J. 293, 295 (C.A.A.F 1999).
58 Lacy, 50 M.J. at 287 (citation omitted).
59 United States v. Moore, No. 201100670, 2012 CCA LEXIS 693, at *4. (N-M. Ct.
Crim. App. May 24, 2012) (unpublished) (citing Kelly, 40 M.J. at 570).
60 United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
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Opinion of the Court
particular accused ‘on the basis of the nature and seriousness of the offense
and the character of the offender.’ ”61 In making this assessment, we analyze
the record as a whole.62 Notwithstanding our significant discretion for deter-
mining appropriateness, we must remain mindful that we may not engage in
acts of clemency.63
2. Appellant’s case is not closely related to the other cases he identifies
Appellant argues that his case is closely related to those of Petty Officer
First Class [PO1] (E-6) Fetterman,64 Chief Logistics Specialist [LSC] (E-7)
Halfacre, and Quartermaster Third Class [QM3] (E-4) Olaya, so as to trigger
an analysis of whether his sentence is highly disparate to the sentence
adjudged against these other Sailors. However, we find this argument to be
unpersuasive.
At the time of his misconduct, PO1 Fetterman was stationed in Oklahoma
and was running a prostitution ring with his wife, using women flown to the
United States from Thailand.65 After an investigation conducted by the
Oklahoma City Police Department, in November 2018, PO1 Fetterman
pleaded guilty in state court to multiple charges related to prostitution and
received a deferred sentence to confinement under Oklahoma law.66 Shortly
after his sentencing, he was administratively separated from the Navy. 67
Because PO1 Fetterman’s case was investigated by and prosecuted by state
authorities in state court, we find that Appellant’s case is not closely related
to his case. Therefore, we do not look to see whether Appellant’s sentence is
highly disparate to the sentence in PO1 Fetterman’s case.
61 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United
States v. Mamaluy, 10 C.M.A. 102, 27 C.M.R. 176, 180-81 (C.M.A. 1959)).
62 Healy, 26 M.J. at 395.
63 United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
64 The previous military appellate defense counsel raised the issue that Appel-
lant’s case was “closely related” to PO1 Fetterman’s case in Appellant’s original
assignment of error.
65 Post-Trial Matters, encl. 1.
66 Id.67 Id.18
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In the case of United States v. LSC Calvin Halfacre,68 the appellant was
charged with rape and patronizing prostitutes at a general court-martial. The
allegations were that LSC Halfacre had, on separate occasions, patronized
three different Thai prostitutes and anally raped each, while he was sta-
tioned in Bahrain. Ultimately, LSC Halfacre entered into a pretrial agree-
ment with the convening authority in which he pleaded guilty to the three
specifications of patronizing a prostitute, but not guilty to the rape specifica-
tions.69 The maximum confinement based on LSC Halfacre’s pleas of guilty
was three years. The military judge sentenced LSC Halfacre to thirty months
confinement and a dishonorable discharge. In contrast, Appellant was con-
victed of sex and labor trafficking, faced a maximum punishment of confine-
ment for life, and was sentenced by the military judge to four years confine-
ment and a dishonorable discharge. Based on the different offenses for which
each chief petty officer was found guilty and the vastly different punitive
exposure that each faced, we likewise find that Appellant’s and
LSC Halfacre’s cases are not closely related. Therefore, we do not look to see
whether Appellant’s sentence is highly disparate to the sentence in
LSC Halfacre’s case.
In the case of United States v. QM3 Kenneth Olaya,70 the appellant was
convicted, contrary to his pleas, of attempted child sex trafficking,
patronizing prostitutes, and attempted sexual assault of a child. He was
sentenced by members to confinement for fifteen months, reduction to
paygrade E-1, total forfeitures, and a dishonorable discharge. While stationed
in Bahrain, QM3 Olaya agreed with an undercover NCIS agent to have sex
with a Thai adolescent female, who was being trafficked to Bahrain and who
was one day short of her sixteenth birthday. He also agreed, thereafter, to
house her while she worked as a prostitute. In contrast, Appellant agreed to
house three Thai women who were being trafficked to Bahrain for prostitu-
tion, and also have them clean his house (constituting labor trafficking).
Appellant and QM3 Olaya would each receive a share of the money the
prostitute(s) he housed earned and each would be able to have sex with the
prostitute(s) whenever he wished. Although his fictional victim’s age is
68 United States v. Halfacre, __ M.J. __, No. 201900210, 2020 CCA LEXIS 431(N-M. Ct. Crim. App. 2020).
69 The Government did not go forward on the rape specifications, which were
dismissed in accordance with the pretrial agreement.
70 United States v. Olaya, No. 201900211, 2020 CCA LEXIS 413 (N-M. Ct. Crim.
App. Nov. 16, 2020) (unpublished).
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United States v. Grant, NMCCA No. 201900212
Opinion of the Court
certainly an aggravating factor in QM3 Olaya’s case, the sex / labor traffick-
ing enterprise Appellant attempted to engage in would have victimized three
human beings as opposed to one. Consequentially, we find that Appellant’s
and QM3 Olaya’s cases are not closely related. Therefore, we do not look to
see whether Appellant’s sentence is highly disparate to the sentence in
QM3 Olaya’s case.
3. Appellant’s sentence was not inappropriately severe
Although Appellant served over seventeen years of honorable service, and
had child support obligations that led him to consider ways to earn extra
money, he voluntarily entered into a scheme that he believed would entail
him housing and holding onto the passports of three Thai women, having
them clean his apartment, profiting from their wages as prostitutes, and
having sex with them whenever he wished. These are very serious offenses,
as reflected by the fact that Congress established life imprisonment as the
maximum punishment for them. Moreover, Appellant entered into a pretrial
agreement that suspended adjudged confinement in excess of five years, and
then he “beat the deal” by receiving a sentence with a confinement compo-
nent of four years.
Ultimately, we find the adjudged sentence appropriate. Weighing the
gravity and circumstances of Appellant’s misconduct against his record of
service and the other evidence in extenuation and mitigation, we are con-
vinced that justice was done and Appellant received the punishment he
deserves.71
III. CONCLUSION
After careful consideration of the entire record of trial, and the briefs from
both parties, we have determined the approved findings and sentence are
correct in law and fact and find no error materially prejudicial to Appellant’s
substantial rights occurred.72 The findings and sentence as approved by the
convening authority are AFFIRMED.
Senior Judge STEPHENS and Judge DEERWESTER concur.
71 See Healy, 26 M.J. at 395.
72 UCMJ arts. 59, 66.
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Opinion of the Court
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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