CAAF will hear the final oral argument of the October 2016 term in the Marine Corps case of United States v. Chikaka, No. 16-0586/MC (CAAFlog case page), on Tuesday, May 23, 2017, at 9:30 a.m. The court granted review of two issues, but only the first issue will get the court’s attention (as the second was resolved in favor of the Government in McClour):
I. Where the military judge admitted on the merits a campaign plan to “fully operationalize the Commandant’s guidance” from the Heritage Tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command influence in this case?
II. Whether the military judge erred when he instructed the members, “if, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.
Staff Sergeant (E-6) Chikaka was convicted contrary to his pleas of not guilty, by a general composed of members with enlisted representation, of attempted abusive sexual contact (as a lesser-included offense of abusive sexual contact), wrongful sexual contact, abusive sexual contact, nine specifications of violating general orders, four specifications of obstructing justice, one specification of indecent language, and one specification of adultery. The adjudged and initially-approved sentence was confinement for 12 years, reduction to E-1, total forfeitures, and a dishonorable discharge. A second convening authority’s action (after the Navy-Marine Corps CCA found error in the post-trial processing) reduced the confinement to 10 years. The CCA further reduced the sentence to confinement to five years.
Chikaka’s convictions arose from his improper relationships with prospective Marine Corps applicants while serving as a recruiter in Douglasville, Georgia, in 2012. But CAAF’s review will focus on something else that happened that year: a presentation given multiple times by then-Commandant of the Marine Corps General James Amos known as the Heritage Brief.