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2. Unlawful Command Influence

CHAPTER 2

Unlawful Command Influence

  1.       Introduction

  2.       Adjudicative UCI

  3.       Accusatory UCI

  4.       Apparent UCI

  5.       Litigating UCI Claims

  6.       Remedial Actions

  7.       Waiver and Forfeiture

  8.       Further Reading

 

I. Introduction

A. Basics

1. Unlawful command influence (UCI) is the improper use, or perception of use, of superior authority to interfere with the court-martial process.  See Gilligan and Lederer, Court-Martial Procedure § 18-28.00 (4th ed. 2015). 

2. The primary legal source for the prohibition against UCI is Article 37, UCMJ.  This article is reproduced as Rule for Court-Martial (R.C.M.) 104. 

B. UCI is consistently called “the mortal enemy of military justice.”  United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986); United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004); United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010); United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013). 

1. The mere appearance of UCI can be as devastating to public perception about the fairness of our system as actual UCI: “This Court has consistently held that any circumstance which gives even the appearance of improperly influencing the court-martial proceedings against the accused must be condemned.”  United States v. Hawthorne, 22 C.M.R. 83, 87 (C.M.A. 1956). 

2. The distinction between apparent and actual UCI is akin to the distinction between implied and actual bias in the voir dire context.  The ability of the convening authority, for instance, to pick panel members may make the public wonder if the convening authority is improperly influencing the court-martial. 

C. Accusatory v. Adjudicative UCI

1. Unlawful command influence is divided into two types: accusatory, that is, unlawful influence in how the case is brought to trial; and adjudicative, that is, unlawful command influence in how the case is tried.

2. Accusatory UCI includes issues related to preferral, forwarding, and referral of charges.  Adjudicative UCI relates to interference with witnesses, judges, members, and counsel.  United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995).

D. Who can commit UCI

1. Generally commanders (or their staffs) commit UCI – but anyone subject to the code can commit UCI. 

a. Convening authorities are prohibited from censuring members, the military judge, or counsel with respect to the findings or sentence or the exercise of their functions in the proceedings.  Art. 37(a); R.C.M. 104(a)(2).

b. Anyone subject to the code is prohibited from attempting to coerce or improperly influence the court-martial or the members, or a convening, reviewing, or approving authority in respect to their judicial acts.  Art. 37(a); R.C.M. 104(a)(2).

2. Legal advisors can commit UCI.  To avoid committing UCI themselves, SJAs and legal advisors need to be clear with subordinate commanders when they are giving their personal legal views and when they are expressing the views of a superior commander.  United States v. Hamilton, 41 M.J. 32 (C.M.A. 1994); see generally United States v. Kitts, 23 M.J. 105.

3. CAAF has used a “mantle of authority” test.  The best way to interpret these cases is to say that former leaders, peers, and subordinates of potential witnesses generally do not commit UCI when they discourage someone from supporting an accused.  Someone needs to use their rank or status to try to influence the action – friendship, neutral mentorship, or peer pressure is not enough.

a. United States v. Ayala, 43 M.J. 296 (C.A.A.F. 1995) 

(1) A friend of the appellant sought letters in support of clemency for the appellant from many members of his unit, and even though some promised him letters, all but one declined.  According to the friend, the current command sergeant major had asked one witness to review the appellant’s counseling file, and then that person decided not to provide a letter; a former sergeant major said he would not provide a letter unless the current sergeant major was also providing one; the current sergeant major told the friend that what he was doing was putting the friend’s career at risk; the current and former company commanders did not want to provide a letter because that would be inconsistent with the chain of command; and the battalion commander did not want to speak out against the chain of command.  The court said that the appellant did not sufficiently allege UCI because, among other things, he did not allege that anyone acting under a “mantle of authority” worked to influence these potential witnesses. 

(2) The court cited United States v. Stombaugh, 40 M.J. 208 (C.M.A. 1994) for that proposition.  In that case, the alleged UCI came from the peers of a lieutenant.  The court clearly included convening authorities, commanders, and staff judge advocates in the category of “mantle of authority” but excluded peers.

(3) The dissent noted that the majority’s reasoning was “fatally flawed” because Article 37(a) clearly states that anyone can commit this kind of UCI.

b. United States v. Barry, 78 M.J. 70 (C.A.A.F. 2018)

(1) After receiving bad advice from his staff judge advocate, the convening authority reached out to his friend and fellow Rear Admiral, the Deputy Judge Advocate General of the Navy for advice.  The convening authority wanted to set aside the findings and sentence as he felt that the military judge’s rulings unfairly prejudiced appellant at trial but DJAG told him not to “put a target” on his back and to approve the findings and sentence.

(2) After ordering a DuBay hearing, CAAF concluded that the convening authority considered DJAG’s comments legal advice that amounted to actual UCI.  CAAF held that anyone subject to the code can commit UCI, like the DJAG, despite the fact that he wasn’t a commander, a convening authority, or an SJA.

(3) In a footnote, CAAF held that the mantle of authority test that it had previously applied for nearly 30 years was now simply a factor that the court could consider.

E. CAUTION!  When you review the case law on UCI, recognize that the current framework for analyzing the problem was established in 1999, in the case of United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999).  Look to pre-Biagase cases for help on what types of facts constitute UCI, but look to post-Biagase cases for how to analyze the problem.  The pre-Biagase case law contains inconsistent statements of law.

F. CAUTION!  The case law on whether an accused forfeits claims of accusatorial UCI if he does not raise it at trial changed in 1996, to where the accused does forfeit claims of accusatorial UCI if not raised at trial.  United States v. Drayton, 45 M.J. 180 (C.A.A.F. 1996); United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996).  The pre-Drayton/Brown cases on accusatorial UCI cases may contain bad law on this point.

G. Relationship of UCI to Pretrial Punishment.

1. The facts of a case might implicate both Article 37 (UCI) and Article 13 (Pretrial Punishment).  Generally, in order for facts that would satisfy Article 13 to also satisfy Article 37, there needs to be some connecting between the disparaging remarks or treatment and the reluctance of witnesses to appear, the accused feeling forced into entering a plea agreement, or an impact on the actual panel members.  See United States v. Stamper, 39 M.J. 1097 (A.C.M.R. 1994); United States v. Cruz, 25 M.J. 326 (C.M.A. 1987).

H. Relationship between UCI and convening authority disqualification in post-trial matters.

1. If a convening authority has otherwise engaged in unlawful command influence, particularly for communicating an inflexible attitude toward punishment or clemency, then he or she might later be challenged on the post-trial action for lack of impartiality.  See United States v. Glidewell, 19 M.J. 797 (A.C.M.R. 1985); see generally United States v. Walker, 56 M.J. 617 (A.F. Ct. Crim. App.  2001); United States v. Davis, 58 M.J. 100 (C.A.A.F. 2003).  Note that this disqualification is based on a different source of law than UCI.

I. Someone who commits UCI in a court-martial could be punished under Article 98 (Noncompliance with procedural rules).  While UCI is a court-martial concept (see generally United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009)), someone who commits something similar to adjudicative UCI in an administrative proceeding could be punished under Article 134 (Wrongful interference with an adverse administrative proceeding).

J. While UCI is generally related to the trial itself, the accused can argue that documents submitted in sentencing (like Article 15s) were themselves tainted by UCI and so should not be admitted.  The theory is that the admission of tainted documents might infect the later trial.   United States v. Lorenzen, 47 M.J. 8 (C.A.A.F. 1997).  During sentencing phase of trial, the defense litigated the admissibility of NJP based on a claim of unlawful command influence.  The service court said that if the appellant had wanted to contest the UCI issue, he could have turned down the Article 15.  CAAF disagreed.  An accused does not waive UCI issues related to an Article 15 by accepting the Article 15 as his forum.  However, in this case, there was no prejudice.

 

II. Adjudicative UCI

A. Witness Intimidation. 

1. Direct attempts to influence witnesses.

a. United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004).  Prior to trial, the defense attempted to obtain character witnesses but was prevented from doing so due to unlawful command influence on the part of the convening authority, a naval commander.  The military judge conducted Biagase analysis, found UCI, and applied the remedy of dismissal of the charges and specifications with prejudice.  The NMCCA agreed that there was UCI, but “concluded that the military judge abused his discretion in fashioning a remedy,” and ordered the military judge to “select an appropriate remedy short of dismissal.”  CAAF applied the abuse of discretion standard of review and “recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.”  While the court has long held that dismissal is a drastic remedy, “dismissal of charges is appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings.”  The MJ “precisely identified the extent and negative impact of the [UCI] in his findings of fact.”  The MJ further concluded the Government failed to prove that the UCI had no impact on the proceedings and explained why other remedies were insufficient. 

b. United States v. Stombaugh, 40 M.J. 208 (C.M.A. 1994).  An officer witness for the accused testified that members of the Junior Officers Protection Association (JOPA) pressured him not to testify.  This did not amount to UCI because JOPA lacked “the mantle of command authority” but may have been obstruction of justice.  A petty officer also was harassed by someone who outranked him and advised not to get involved.  This did amount to UCI, but that UCI was harmless beyond a reasonable doubt.

c. United States v. Gleason, 43 M.J. 69 (C.A.A.F. 1995).  A sergeant major was put on trial for, among other things, contacting a retired soldier to kill the captain who reported him for misconduct.  The service court found:  “there was no single act on which to hang the label of unlawful command influence. Rather, it was a command climate or atmosphere created by the action of [the commander]. His actions of relieving the command structure of Company B without explanation; the characterization of the defense counsel as the enemy; returning the appellant to Okinawa in chains and under guard and placing him in the brig and requiring unit members to receive command permission to visit him; the inspections and unit lock-downs without explanation; adverse officer efficiency reports and reliefs of individual [sic] without explanation shortly after testifying for the appellant created . . . a pervasive atmosphere in the battalion that bordered on paranoia. We find that the command climate, atmosphere, attitude, and actions had such a chilling effect on members of the command that there was a feeling that if you testified for the appellant your career was in jeopardy.”  CAAF agreed, found that UCI pervaded entire trial, and set aside the contesting findings and sentence.

d. United States v. Levite, 25 M.J. 334 (C.M.A. 1987).  The chain of command briefed members of the command before trial on the “bad character” of the accused, to include disclosing his unit file.  During trial, the 1SG “ranted and raved” outside the courtroom about NCOs condoning drug use.  After trial, NCOs who testified for the accused were told “that they had embarrassed” the unit.  Court found UCI necessitated setting aside findings of guilt and the sentence.

e. United States v. Newbold, 45 M.J. 109 (C.A.A.F. 1996).  Ship commander held all-hands formation at which he referred to four sailors accused of rape as “rapists,” “scumbags” and “low-lifes.”  He repeated the berating at additional formations and in meetings with female crewmembers.  CAAF found no UCI because the commander was not a convening authority, no panel members were drawn from the ship in question, there was no allegation that the accused was deprived of witnesses, and the UCI did not cause the accused to plead guilty.

f. United States v. Plumb, 47 M.J. 771 (A.F. Ct. Crim. App. 1997).  The appellant was a captain in the Air Force Office of Special Investigations (AFOSI).  He was accused of fraternization, adultery, and conduct unbecoming.  AFOSI agents (in this case, members of the appellant’s chain of command or otherwise agents of the commander) pressured, harassed, targeted for prosecution, and otherwise interfered with and intimidated defense witnesses. The court agreed with the trial judge that the defense presented some evidence of UCI but said that the trial judge did not take enough remedial measures to ensure that there was no appearance that UCI affected the proceedings, and here, where there was such a large volume of potential UCI issues, that was needed.  The court reversed the findings.  

g. United States v. Jameson, 33 M.J. 669 (N.M.C.M.R. 1991); United States v. Jones, 30 M.J. 849 (N.M.C.M.R. 1990); United States v. Jones, 33 M.J. 1040 (N.M.C.M.R. 1991) (related cases).  Two witnesses testified on behalf of an accused who was charged with engaging in lesbian activities.  The command distributed copies of transcripts of their testimony and the two were relieved of drill sergeant duties and had their MOSs revoked.  This was evidence of unlawful command influence that might have affected the action in the case.

h. United States v. Bradley, 48 M.J. 777 (A.F. Ct. Crim. App. 1998) (following remand to Dubay hearing in United States v. Bradley, 47 M.J. 715 (A.F. Ct. Crim. App. 1997).  A potential defense witness called the OSJA to find out where to go for trial.  The person who answered the phone was the SJA, who identified himself.  The defense witness then began asking questions about the case, which the SJA answered appropriately.  After hearing about the case, the defense witness said that he might now not want to testify.  The SJA then realized he was talking to a defense witness and said he had to testify and that it was not his intention to dissuade the witness from testifying.  The court found that because the witness was the one that initiated the questions and because the SJA gave the witness appropriate instructions, there was no UCI. 

i. United States v. Clemons, 35 M.J. 770, 772 (A.C.M.R. 1992).  Prior to the court-martial, the battalion commander called in three potential defense witnesses and told them that they needed to be careful who they were character references for.  The military judge found UCI and ordered several remedies.  The court found that the military judge’s remedies prevented the proceedings from being tainted.

j. United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010).  The senior recruiter at the appellant’s office ordered the appellant not to talk to any potential witnesses; prohibited the appellant from contacting anyone in the unit for non-work related issues; openly disparaged the appellant and expressed his certainty of the appellant’s guilt in front of others; intimidated potential defense witnesses; and intimidated the appellant from filing an IG complaint about these activities.  The military judge found UCI and implemented some remedies (the military judge did not follow Biagase analysis, though).  CAAF reversed the findings and sentence because there was no evidence in the record that the remedies were actually implemented.

2. Indirect or Unintended Influence.

a. United States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984).  CG addressed groups over several months on the inconsistency of recommending discharge-level courts and then having leaders testify that the accused was a “good soldier” who should be retained.  The message received by many was “don’t testify for convicted soldiers.”  The guilty plea was affirmed but the sentence was reversed.  See also United States v. Glidewell, 19 M.J. 797 (A.C.M.R. 1985); United States v. Thomas, 22 M.J. 388 (C.M.A. 1986); United States v. Giarratano, 20 M.J. 553 (A.C.M.R. 1985); United States v. Anderson, 21 M.J. 670 (A.C.M.R. 1985).

b. United States v. Francis, 54 M.J. 636 (A. Ct. Crim. App. 2000).  Accused’s squad and platoon leaders told other NCOs and soldiers in the unit to stay away from the accused and they feared “trouble by association.”  Without ruling that those facts did or did not amount to some evidence of UCI, the court found that the government satisfied its burden under Biagase

c. United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998) (companion case to Griffin, discussed in the Accusatorial UCI section, below).  In addition to a command policy letter that has UCI issues (but which was quickly remedied), the battery commander said at a PT formation that there were drug dealers in the battery and that Soldiers should stay away from those involved with drugs.  The CG ordered a 15-6 investigation when he learned about the battery commander’s comments and the commander retracted his statements at another formation.  Later, the trial counsel directed that the command should interview some potential alibi witnesses and had the commander read the witnesses their rights. The military judge conducted exhaustive fact finding and found no actual UCI.  CAAF said that it had no reason to believe that the military judge was affected by UCI, and the appellant had not raised an issue that he chose a judge alone trial because he was concerned about having his panel tainted by UCI.  While some evidence of UCI was raised, the court was satisfied beyond a reasonable doubt (particularly because of the thorough actions taken by the military judge) that the proceeding was not affected by UCI.

d. United States v. Drayton, 45 M.J. 180 (C.A.A.F. 1996).  The appellant was convicted of shoplifting from the PX.  Two weeks after he was charged with shoplifting, the battalion commander held an NCOPD where he showed the NCOs security tapes from the PX (but not the ones he was in).  Six witnesses testified for the appellant during sentencing.  The court found that this amounted to just a bare allegation because there was no allegation that any witness was actually influenced.

e. United States v. Ashby, 68 M.J. 108 (C.A.A.F 2009).  The appellant did not show that comments made by senior officials following the Aviano gondola incident amounted to some evidence of UCI.

B. Panel member composition.  Court-martial stacking is a form of unlawful command influence.

1. United States v. Upshaw, 49 M.J. 111 (C.A.A.F. 1998).  The issue is the convening authority’s intent.  If the motive for choosing a certain panel composition (even if mistaken) is benign, then systematic inclusion or exclusion of certain members may not be improper.  In this case, the exclusion of some members was just a mistake, so no UCI.  See also United States v. McKinney, 61 M.J.767, (A.F. Ct. Crim. App. 2005).

2. United States v. White, 48 M.J. 251 (C.A.A.F. 1998).  Convening authority’s memo directing subordinate commands to nominate their “best and brightest staff officers,” and that “I regard all my commanders and their deputies as available to serve as members” did not constitute court packing.

3. United States v. McClain, 22 M.J. 124 (C.M.A. 1986).  The staff judge advocate excluded junior members because he believed that they were more likely to adjudge light sentences.   This belief came from discussion with past panel members, and the convening authority considered recent, unusually light sentences at the time that he made his selections.  The court reversed the sentence (the trial was a guilty plea before a panel).

4. United States v. Redman, 33 M.J. 679 (A.C.M.R. 1991).  After a series of results that they disagreed with, the SJA and trial counsel decided to try to exclude certain members from the panel through the use of peremptory challenges.  When the military judge denied these challenges, the SJA decided to shuffle the panel.  After an investigation, the higher level commander withdrew the original convening authority’s power to convene courts.  While the initial convening authority’s actions were UCI, the accused was tried by a new panel that was not tainted by the UCI so no prejudice.

5. United States v. Brocks, 55 M.J. 614 (A.F. Ct. Crim. App. 2001). Base legal office intentionally excluded all officers from the Medical Group from the list of court member nominees sent to the convening authority.  The SJA and chief of justice based this action on the fact that all four alleged conspirators to distribute cocaine and many witnesses came from the Medical Group.  Decision to exclude came from desire to avoid conflicts and unnecessary challenges for cause.  The exclusion of the Group nominees did not constitute UCI.  Motive of SJA and staff was to protect the fairness of the court-martial, not to improperly influence it. 

6. United States v. Riesback, 77 M.J. 154 (C.A.A.F. 2018).  Following voir dire and challenges, the seven member panel that convicted and sentenced appellant was composed of five women, four of whom were victim advocates trained to provide support and counseling to victims of rape and sexual assault.  CAAF held that the government failed to prove that the panel selection process was not motivated by gender-based court stacking.  Additionally, the government failed to prove beyond a reasonable doubt that the appellant received a fair trial from an impartial panel free from the effects of UCI.

C. Influencing the panel members’ decisions.

1. Article 37 says that the convening authority cannot censure the panel members based on their findings or sentence, and no one may consider a person’s service on the panel when preparing evaluation reports or when making assignment decisions.

2. Through command or commander policy in the deliberation courtroom.

a. United States v. Kirkpatrick, 33 M.J. 132, 133 (C.M.A. 1991).  The military judge gave an explicit sentencing instruction on the Army’s policy regarding use of illegal drugs: “[H]ere we have a senior noncommissioned officer directly in violation of that open, express, notorious policy of the Army:  Through[sic] shalt not [use marijuana].”  The court noted that it has long condemned any reference to department or command policies being placed before members charged with sentencing responsibilities.  This implicated UCI concerns in the sense that the government attempted to, in effect, bring the commander into the courtroom and constituted plain error which was not waived by the defense’s failure to object; sentence set aside. 

b. United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002).  SPCMCA sent an email to subordinate commanders “declaring war on all leaders not leading by example.”  The email also stated the following:  “No more platoon sergeants getting DUIs, no more NCOs raping female soldiers, no more E7s coming up ‘hot’ for coke, no more stolen equipment, no more approved personnel actions for leaders with less than 260 on the APFT, …., -- all of this is BULLSHIT, and I’m going to CRUSH leaders who fail to lead by example, both on and off duty.”  At a subsequent leaders’ training session, the commander reiterated his concerns.  After consulting with the SJA, the commander issued a second email to clarify the comments in the first.  The commander stated that he was expressing his concerns about misconduct, but emphasized that he was not suggesting courses of action to subordinates, and that each case should be handled individually and appropriately in light of all circumstances.  He specifically addressed duties as a court-martial panel member and witness.  At trial, the defense counsel challenged all of the panel members from the brigade based on implied bias and potential for unlawful command influence. The military judge denied the challenge using R.C.M. 912 as the framework.  CAAF remanded for a DuBay hearing, stating that the military judge should have used an unlawful command influence framework to determine the facts, decide whether those facts constituted UCI, and conclude whether the proceedings were tainted. 

c. United States v. Baldwin, 54 M.J. 308 (C.A.A.F. 2001).  Nine months after her court-martial, appellant filed an affidavit alleging that the GCMCA conducted OPDs where he commented that officer court-martial sentences were too lenient and stated that the minimum should be at least one year.  Appellant also alleged that her court-martial was interrupted by one of these sessions (mandatory for all officers assigned to the installation).  The court stated, “We have long held that the use of command meetings in determining a court-martial sentence violates Article 37.”  The court found that this allegation was sufficient to raise a UCI issue and remanded for a limited hearing.

d. United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003).  Appellant was convicted of various offenses to include rape, indecent assaults, indecent acts, and maltreatment of trainees at Aberdeen Proving Ground.  He contended that he was denied a fair trial because of apparent UCI related to pretrial publicity and official comments related to his case.  As support, appellant cited the Army’s “zero tolerance” policy on sexual harassment; a chilling effect on the command decision-making process stemming from the Secretary of the Army’s creation of the Senior Review Panel to examine gender relations; public statements made by senior military officials suggestive of appellant’s guilt; and public comments by members of Congress and military officials regarding the “Aberdeen sex scandal.”  In preparation for filing motions at trial, the defense counsel interviewed the GCMCA and SPCMCA and cross-examined them at trial, and conducted extensive voir dire of the panel members on this issue.  The court held that there was no nexus between the purported unlawful or unfair actions of senior military officials and the convening authority’s decision to refer the case.  Additionally, there was no nexus between acts complained of and any unfairness at trial and no evidence that court members were influenced to return guilty verdicts because that is what the Army or superiors wanted.  CAAF listed several factors that existed in this case that showed that, in this case, the government proved beyond a reasonable doubt that UCI (if it existed) did not taint the proceeding.

e. United States v. Dugan, 58 M.J. 253 (C.A.A.F. 2003).  Junior panel member provided defense counsel with a letter after court-martial detailing her concerns regarding statements made during sentencing deliberations.  Panel member alleged that another member reminded the panel that the GCMCA would review their sentence and they needed to make sure they sent a “consistent message.”  (GCMCA held a “Commander’s Call” several weeks before during which drug use was discussed). Defense counsel requested a post-trial Article 39a session.  Military judge denied the request.  CAAF determined the defense counsel successfully raised unlawful command influence and the Government must rebut the allegation and remanded for DuBay hearing.  Of note, CAAF pointed out the limitations in place in questioning the panel members during the DuBay hearing.  

f. United States v. Youngblood, 47 M.J. 338 (C.A.A.F. 1997).  Staff meeting at which Wing commander and SJA shared perceptions of how previous subordinate commanders had “underreacted” to misconduct created implied bias among three senior court members in attendance.  The court reversed the case because the military judge failed to grant challenges for cause against those members without reaching the UCI issue.  The court noted that despite the member’s response that they could disregard the comments, it is “asking too much” to expect members to adjudge sentence without regard for potential impact on their careers.

g. United States  v. Martinez, 42 M.J. 327 (C.A.A.F. 1995).  Wing commander’s “We Care About You” policy letter setting out reduction in grade and $500 fine “as a starting point” for first-time drunk drivers was clearly UCI, notwithstanding letter’s preface that “[p]unishment for DWI will be individualized.”  However, the defense counsel was able to conduct extensive voir dire of the panel members and the military judge gave a proper curative instruction, so UCI was harmless beyond a reasonable doubt.

h. United States v. Pope, 63 M.J. 68 (C.A.A.F. 2006).  Appellant was an Air Force recruiter involved in unprofessional conduct with prospective applicants.   The Military Judge admitted (over defense objection that this was injecting command policy into the deliberation process) a letter offered by the government at sentencing which argued Air Force core values and endorsed “harsh adverse action” for those who committed recruiter misconduct.  CAAF held that admitting the letter (especially without a limiting instruction) raised the appearance of improper command influence because it conveyed the commander’s view that harsh action should be taken against an accused.  CAAF was not convinced beyond a reasonable doubt that the members were not influenced by the letter.  The sentence was set aside with a rehearing authorized. 

i. United States v. Reed, 65 M.J. 487 (C.A.A.F. 2008).  In support of an unlawful command influence motion, appellant introduced an email from the convening authority to his subordinates addressing a variety of command management issues and containing a thirty-one page slideshow.  One slide contained the following statement: “Senior NCO and Officer misconduct – I am absolutely uncompromising about discipline in the leader ranks.”  Some noted examples included: “BAH Fraud, Fraternization, DUI, Curfew violations, Soldier abuse, Sexual misconduct.”   The appellant was charged with BAH fraud.  Later, the CA, upon SJA advice, issued a clarifying email.  The military judge allowed the defense to fully litigate the issue.  The other convening authorities in transmittal chain testified that they had exercised independent judgment, and the military judge allowed extensive voir dire of the panel members.  CAAF held that the government met its burden of demonstrating beyond a reasonable doubt that the proceedings were not affected by actual unlawful command influence or the appearance of unlawful command influence.     

j. United States v. Ayers, 54 M.J. 85 (C.A.A.F. 2000).  The appellant engaged in misconduct with a trainee at Fort Lee about the same time that the trainee abuse scandal at Aberdeen Proving Ground was happening.  He filed a UCI motion based on the news coverage that accompanied the Aberdeen Proving Ground incidents, saying that the senior leaders comments associated with that scandal and others around the country would also affect his trial, or at least cause the perception of UCI at his trial. Here, the court could find no facts that connected any of that coverage to his actual trial, so the appellant failed the first Biagase factor.

3. By the commander physically being in the courtroom. 

a. United States v. Harvey, 64 M.J. 13 (C.A.A.F. 2006).   During the government’s closing argument on findings, the convening authority was present in the courtroom wearing a flight suit.  Based on the apparent recognition of the convening authority by several panel members, defense counsel moved for a mistrial, which was denied by the military judge.   CAAF set aside the findings and sentence without prejudice, but limited the approved sentence at any rehearing to a punitive discharge.   The military judge is the “last sentinel” in the trial process to protect a court-martial from UCI.  The trial developments in this case raised “some evidence” of unlawful command influence and the military judge failed to inquire adequately into the issue.  Specifically, the convening authority was present in the courtroom wearing a flight suit when the government’s argument characterized appellant’s conduct as a threat to the aviation community; the senior member of the panel was a subordinate member of the convening authority’s command (and the subject of an unsuccessful challenge for cause); and there was some evidence that the panel was watching the convening authority during argument.  Further, the military judge failed to then conduct Biagase analysis.  CAAF noted that a convening authority is not barred from attending a court-martial, “[b]ut as this case illustrates, the presence of the convening authority at a court-martial may raise issues.”

b. United States v. Rosser, 6 M.J. 267 (C.M.A. 1979).  The military judge abused his discretion in denying mistrial where accuser’s company commander’s presence throughout proceedings was “ubiquitous” and commander engaged in “patent meddling in the proceedings.”         

c. While it is not per se UCI for the commander to be in the courtroom, if the defense raises the issue, it is fair to say that the commander being in the courtroom will per se satisfy the first Biagase factor.  The burden will now shift to the government to prove beyond a reasonable doubt that the commander being in the courtroom did not constitute UCI, or if it did, that it did not influence the proceeding.  So, the ultimate question is, if the commander wants to be in the courtroom (or if the SJA wants to be in the courtroom), is it worth it?  In Harvey, the court stated: “We share [the responsibility to guard against UCI] with military commanders, staff judge advocates, military judges, and others involved in the administration of military justice.  Fulfilling this responsibility is fundamental to fostering public confidence in the actual and apparent fairness of our system of justice.”  Harvey, 64 M.J. at 17.  Probably the best solution is to find a way to observe the court-martial without physically being in the courtroom, or save observation moments for contested judge-alone cases.

4. By bringing the commander in the courtroom via argument. 

a. United States v. Mallett, 61 M.J.761 (A.F. Ct. Crim. App.2005). Trial counsel’s sentencing argument injected unlawful command influence into the proceedings because the TC referred to commanders in her argument.  Specifically, the TC referred to “commander’s calls” where the commander “would warn us to stay away . . . not to use drugs.”  After stating that the commander could not impose any particular punishment, but could only send the charges to court-martial, the TC then posited, “what would a commander say to get his unit’s attention and say, ‘I mean business about drugs,’ if he had the authority to be the judge and jury in a case where you are, in essence, the jury deciding this?”  The TC concluded that, a sentence that would “get people’s attention” is “18 months [of] confinement and a bad conduct discharge.”  Trial defense counsel did not object to the argument.  The court held that the TC’s comments were improper under R.C.M. 1001(g), which expressly prohibits making reference to a convening authority or command policy in sentencing arguments and amounted to plain error, despite the lack of defense objection at trial.  The court found that the appellant suffered prejudice and so set aside the sentence.

b. United States v. Sparrow, 33 M.J. 139 (C.M.A. 1991).  The trial counsel argued that “General Graves has selected you.  He said, “Be here.  Do it.  You have good judgment.  I trust you.  I know you’ll do the right thing.”  The defense did not object.  The court said that if there was UCI, it did not affect the proceeding. 

5. Through the exercise of rank in the deliberation room.

a. Improper for senior ranking court members to use rank to influence vote within the deliberation room, e.g., to coerce a subordinate to vote in a particular manner.  Discussion, Mil. R. Evid. 606 (MCM 2016 ed.).

b. United States v. Accordino, 20 M.J. 102 (C.M.A. 1985)  Allegation that senior officer cut off discussion by junior members, remanded to determine if senior officer used rank to “enhance” an argument.

c. United States v. Lawson, 16 M.J. 38, 41 (C.M.A. 1983).  Straw votes are informal votes taken by members to see where they stand on the issues.  They are not authorized by the RCMs or the UCMJ but are not specifically prohibited by these sources.  However, the use of straw votes allows rank to enter the courtroom because it works against the anonymity rules.

d. United States v. Reynolds, 40 M.J. 198 (C.M.A. 1994).  A split court could not agree whether the president of the panel (a major) made remarks (calling other members “captain” and using a tone of voice to impress inferiority of their rank) amounted to UCI. 

6. Through surrogate witnesses.  United States v. Yerich, 47 M.J. 615 (A. Ct. Crim. App. 1997). Testimony from a government witness (SFC) that the accused had no rehabilitative potential in the military did not constitute unlawful command influence.  Court rejects argument that SFC’s testimony was adopted, and therefore attributable to, the commanding officer. 

7. Through improper rehabilitation evidence in sentencing. United States v. Cherry, 31 M.J. 1, 5 (C.M.A. 1990); United States v. Ohrt, 28 M.J. One of the problems (of many) with having a commander say, “No rehabilitation potential in the military” is that the commander has essentially told the panel what he or she thinks is the appropriate punishment: one that includes a punitive discharge.

8. Through the terms of a co-accused’s agreement with the convening authority.  United States v. Schnitzer, 44 M.J. 380 (C.A.A.F. 1996).  Disclosure, during members trial, of the terms of co-accused’s pretrial agreement does not per se bring the CA into the courtroom, provided it is otherwise admitted for a valid purpose.

D. Influencing the independent discretion of the military judge.

1. Prohibition:  “No person subject to [the UCMJ] may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case . . . .”  UCMJ, art. 37(a). 

2. Efficiency Ratings:  “[N]either the convening authority nor any member of his staff shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military judge.”  UCMJ art. 26(c).

3. In cases involving the military judge, the pressure will often come from people other than the convening authority – like other military judges or staff judge advocates.

a. United States v. Rice, 16 M.J. 770 (A.C.M.R. 1983). Improper for DSJA to request that the senior judge telephone the magistrate to explain the seriousness of a certain pretrial confinement issue. 

b. United States v. Mabe, 33 M.J. 200 (C.M.A. 1991).  Senior judge’s letter, written to increase sentence severity, subjected judges to unlawful command influence.

c. United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976).  Commander and SJA inquiries that question or seek justification for a judge’s decision are prohibited.

d. United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006). 

(1) The trial counsel, in concert with the staff judge advocate, attacked the character of the military judge in voir dire, accusing her of having a social interaction (a date) with the civilian defense counsel that was on the case.  The MJ recused herself, and the fourth judge on the case granted a motion for a change of venue, disqualified the SJA and the convening authority from taking post-trial action in the case, and barred the SJA from attending the remainder of the trial.

(2) CAAF found that improperly seeking recusal of the military judge was actual UCI.  Because the same trial counsel remained an active member of the prosecution, the government’s later actions and remedial steps were undermined.  Further, a reasonable observer would have significant doubt about the fairness of this court-martial in light of the government’s conduct.  Neither actual nor apparent unlawful command influence have been cured beyond a reasonable doubt in this case.  CAAF dismissed the case with prejudice.

e. United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013).  Unlawful command interference where trial counsel used the judge’s official personnel file to find personal family information to seek recusal of the military judge.  The SJA also called the circuit military judge about the issue.  The trial judge recused himself.  CAAF dismissed the case with prejudice.

f. United States v. Tilghman, 44 M.J. 493 (C.A.A.F. 1996).   Unlawful command interference when commander placed accused into pretrial confinement in violation of trial judge’s ruling. 

g. United States v. Campos, 42 M.J. 253 (C.A.A.F. 1995).  The military judge said on the record that he believed he was relieved of his position as senior judge because his superiors believed he was giving lenient sentences.  During voir dire, he said he thought he could still be fair.  Based on extensive trial record, CAAF found no nexus between assignment of other judge and accused’s trial, that appearance taken care of at Art. 39(a) session and trial, and no abuse of discretion in not recusing himself.

h. United States v. Allen, 33 M.J. 209 (C.M.A. 1991).  When making the decision to detail a judge to a case, a senior judge made the comment that a judge that was under consideration had a reputation for being a light sentencer and pro-defense.  At a conference of SJAs, one session discussed “Problems with the Judiciary” where one of the action items was to approach the TJAG about how to deal with “inappropriate” judges.  The court found that this raised the appearance of UCI, however, the UCI did not affect the proceeding.

E. Influencing the Defense Counsel.

1. Article 37 prohibits the convening authority from censuring, reprimanding, or admonishing the defense counsel with respect to the exercise of his or her functions in the conduct of the proceeding. 

2. United States v. Fisher, 45 M.J. 159 (C.A.A.F. 1996).  During a recess interview with the DC just before he was to be cross-examined on suppression motion, the CA told the DC that he questioned the ethics of anyone who would try to get results of urinalysis suppressed.  The court found that this violated Art. 37, but found no effect on trial process because the defense counsel skillfully crossed the CA, and because defense never raised the claim until after trial.  The court granted a remedy of sending the case back for a new action by a different convening authority. 

3. United States v. Crawford, 46 M.J. 771 (C.G.Ct.Crim.App. 1997).  The convening authority “dressed down” the defense counsel, told her the sentence was too light, that the appellant had lied to her and encouraged her to put on false evidence.  The defense counsel took offense and told him he better have proof of accusations like that.  The convening authority turned to the appellant, who was also there, and said he was going to investigate whether he had perjured himself.  The court found a violation of Art. 37.  This happened after trial, so there was no effect on the trial.  As a preventative matter, the convening authority withdrew himself from acting on the case.  With him no longer involved in the case, the court could find no prejudice.

F. Influencing a subordinate commander in the exercise of their clemency actions.  United States v. Johnson, 54 M.J. 32 (C.A.A.F. 2000).  The appellant alleged that the intermediate commander strongly supported a suspension of some punishment.  The original convening authority left command and a new convening authority, with a tougher stance, came in.  Then, the intermediate commander decided not to go to bat for him.  Following a Dubay hearing, the Dubay military judge found no evidence of UCI and the court found that military judge’s findings were not clearly erroneous.

G. Influencing the accused to plead guilty.

1. If the accused enters his pleas of guilty because he is afraid to go to trial before a court that he believes has been unlawfully influenced (and so will not give him a fair trial), then courts may find that UCI has impacted the proceedings.  United States v. Gleason, 43 M.J. 69 (C.A.A.F. 1995); United States v. Thomas, 22 M.J. 388 (C.M.A. 1986); United States v. Kitts, 23 M.J. 105 (C.M.A. 1986).

2. Note that this is different than the accused negotiating for a better pretrial agreement in exchange for waiving an accusatorial UCI issue.  United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995);

III. Accusatory UCI

A. Independent discretion by each commander.

1. Article 37(a) states that no one may attempt to coerce or influence the action of any convening, approving, or reviewing authority with respect to his judicial acts. 

2. R.C.M. 306 says that each commander has discretion to dispose of offenses, and that a superior commander may not limit the discretion of a subordinate commander to act on cases over which authority has not been withheld.

3. The key to these problems is to recognize that if the superior commander disagrees with how the subordinate commander is disposing of the case, the superior commander should withhold that case to his or herself rather than trying to get the subordinate commander to change his or her mind.  This may cause some logistical problems but that is the cost of preventing UCI.

B. Cases.

1. United States  v. Martinez, 42 M.J. 327 (C.A.A.F. 1995).  The UCI occurred after the GCMCA had referred the case, so no impact on the accusatorial process.

2. United States v. Rivera, 45 C.M.R. 582, 583 (A.C.M.R. 1972). It was improper for a battalion commander to return a request for Article 15 to company commander with comment, “Returned for consideration for action under Special Court-Martial with Bad Conduct Discharge.” The court noted that “The fine line between lawful command guidance and unlawful command control is determined by whether the subordinate commander, though he may give consideration to the policies and wishes of his superior, fully understands and believes that he has a realistic choice to accept or reject them.”  Here, the court found that the company commander did not and so reversed the case.

3. United States v. Griffin, 41 M.J. 607 (A. Ct. Crim. App. 1994).  The division commander issued a five-page policy letter on physical fitness and physical training and addressed other fitness considerations such as weight, smoking, drinking, and drugs, stating: “There is no place in our Army for illegal drugs or for those who use them.  This message should be transmitted clearly to our soldiers, and we must work hard to ensure that we identify drug users through random urinalysis and health and welfare inspections.”  The SJA took action when he learned about the letter and had the CG issue a new letter without the offensive language.  The defense counsel further improved his client’s position by negotiating a waiver of the issue.  While there could have theoretically been UCI in the referral process, the issue was waived.  See also United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998) (arose out of the same facts as Griffin).

4. United States v. Reed, 65 M.J. 487 (C.A.A.F. 2008).  In support of an unlawful command influence motion, appellant introduced an email from the convening authority to his subordinates addressing a variety of command management issues and containing a thirty-one page slideshow.  One slide contained the following statement: “Senior NCO and Officer misconduct – I am absolutely uncompromising about discipline in the leader ranks.”  Some noted examples included: “BAH Fraud, Fraternization, DUI, Curfew violations, Soldier abuse, Sexual misconduct.”   The appellant was charged with BAH fraud.  The defense also presented evidence that a deputy commander of a subordinate unit addressed a “newcomer’s briefing” with a warning that “BAH fraud is an automatic court-martial here.”  Further, the CA contacted the appellant’s rater and senior rater during the preferral process to ensure that the accused got bad remarks on his evaluation.  Later, the CA, upon SJA advice, issued a clarifying email.  The military judge allowed full litigation on the issue, and the other convening authorities in transmittal chain testified that they had exercised independent judgment, and the military judge allowed extensive voir dire of the panel members.  CAAF held that the government met its burden of demonstrating beyond a reasonable doubt that the proceedings were not affected by actual unlawful command influence or the appearance of unlawful command influence.                   

5. United States v. Gerlich, 45 M.J. 309 (C.A.A.F. 1996).  After a commander subordinate to the SPCMCA adjudged an Art. 15, the victim went to the IG, when then wrote to GCMCA, who told the SPCMCA that he needed to relook the case because he thought that the Art. 15 would not achieve the GCMCA’s justice goals.  He told the SPCMCA to decide whether further action under the UCMJ was warranted.  The SPCMCA then directed the lower commander to set aside the Art. 15.  Charges were ultimately referred.  The SPCMCA eventually testified and said that he used his independent judgment when deciding on the ultimate disposition and changed his mind based on what he learned in the subsequent investigation.  CAAF stated, “[W]e have previously recognized the difficulty of a subordinate ascertaining for himself or herself the actual influence a superior has on that subordinate.”   Here, the court thought that the SPCMCA considered all of the relevant information prior to being told to relook the case and only changed his mind after receiving a letter from the superior commander that suggested that he change his mind.  CAAF found that the government had not met its burden to show no UCI and so reversed the findings.

6. United States v. Wallace, 39 M.J. 284 (C.M.A. 1994).  A company commander imposed Art. 15 punishment on the accused.  The battalion commander learned of additional misconduct by the accused and told subordinate commander, “You may want to reconsider the [company grade] Article 15 and consider setting it aside based on additional charges.”  The company commander considered the new information, set aside the Article 15, preferred charges and recommended a court-martial.  The company commander testified that he felt influenced to reconsider his original decision, but not to come to any certain conclusion after having reconsidered the new information, and that he did not feel any pressure related to making his final decision.  CAAF said that these facts did not amount to UCI (note, this is a pre-Biagase case so that analysis was not used).  The military judge had fully developed the record and CAAF agreed with the trial judge that the company commander had exercised independent discretion.    

7. United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004).  In a conference call with three subordinate officers, the senior officer “very clearly and forcefully made his opinion known” to one of the subordinates that the case was too serious for nonjudicial punishment and that article 32(b) investigation was warranted.  The military judge found that the subordinate officer knew that the disposition of the case was his to make.  Viewed in a vacuum, the conference call would look like UCI, however the military judge’s fact-finding determined that UCI did not actually occur.  In particular, the subordinate commander initiated the conference call, and after the call was over, it was clear that the subordinate commander was free to make his own decision.

8. United States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984).  There was no evidence that the commander’s improper comments had any impact on any subordinate’s decision to swear to charges or recommend a particular disposition of charges.

9. United States v. Johnston, 39 M.J. 242 (C.M.A. 1994).  The appellant did not present any evidence that the subordinate commanders were pressured into preferring or transmitting charges.

10. United States v. Drayton, 45 M.J. 180 (C.A.A.F. 1996).  In a post-trial affidavit, the appellant asserted that when he talked to his company command, he said he thought that referral to a court-martial was a bit harsh for shoplifting.  The appellant said that the commander told him that he agreed but the battalion commander wanted a court-martial.  The company commander, in an affidavit, said that he met with the battalion commander and discussed the case, but that he exercised independent discretion.  The court held that the appellant waived this claim by not raising it at trial.

11. United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996).  The original brigade commander went on television and said that a group of Soldiers in his command had brought shame to the Brigade.  The SJA advised him to step aside in the case and he did.  The case was transferred to a different brigade commander.  The court found no error, saying that no one presented any information that this subsequent commander did not exercise complete, independent control over his jurisdiction.

12. United States v. Weasler, 43 M.J. 15 (1995).  The company commander was going to go on leave.  She told her subordinate (who would be the acting commander) to sign the papers when they came in.  She testified that if he had done anything differently than she had directed, then she would have re-preferred the charges.  The appellant waived the issue as part of a pretrial agreement but raised the ability to waive UCI in a pretrial agreement on appeal.  The court found that this was UCI, but because it was accusatorial UCI, could be waived as part of a pretrial agreement.

13. United States v. Hamilton, 41 M.J. 32 (C.M.A. 1994).  The company commander gave the appellant an Article 15.  The SJA, described as “aggressive,” believed the case should be resolved at a court-martial and directed his subordinates to tell the brigade commander to prosecute this case, or else they would take the case up a level (to the commanding general).  The brigade commander’s first reaction was that the case probably should be at a field grade Art. 15.  He eventually preferred charges and transmitted the case to the commanding general but said he did not feel pressured to do so.  The court found that the SJA was expressing his personal opinion and not that of the superior commander and that the brigade commander’s decision was not tainted by UCI.

14. United States v. Richter, 51 M.J. 213 (C.A.A.F. 1999).  In a post-trial affidavit, the appellant alleged that the commander was coerced into preferring charges by the staff judge advocate’s office, who threatened to remove the command team from the command if they didn’t prefer charges.  The court found that the accused forfeited this claim by not raising it at trial because there was no evidence that the appellant could not have found out about this problem before trial.

15. United States v. Villareal, 52 M.J. 27 (C.A.A.F. 1999).  The parties signed a pretrial agreement.  Then, the convening authority withdrew from the agreement.  He said that he received a lot of pressure from the victim’s family members so he sought the advice of a mentor, who happened to be the acting superior convening authority.  The superior commander said, “what would it hurt to send the issue to trial,” and then the convening authority withdrew from the agreement.  Following the withdrawal, the case was transferred to a new command.  The court found that because the subordinate commander reached out for the advice, there was no actual UCI and even if there was apparent UCI, that was cured by the transfer of jurisdiction.  (The court then examined if the withdrawal from the PTA was otherwise proper).

IV. Apparent uci

     A. Basics

1. Allegations of unlawful command influence are reviewed for actual unlawful command   influence as well as the appearance of unlawful command influence.  “Even if there was no actual unlawful command influence, there may be a question whether the influence of command placed an ‘intolerable strain on public perception of the military justice system.” United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013).

2. In apparent UCI claims, the government must prove beyond a reasonable doubt that the unlawful command influence did not place an “intolerable strain” upon the public’s perception of the military justice system and that “an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding.

B. Cases

1. United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013).  Appellant was charged with one specification of child pornography.  Trial counsel and unnamed other officers in discussing the military judge’s definition of the term “minor,” speculated that the military judge may have had a young wife.  Trial counsel examined the military judge on the record who stated that he married his wife when she was seventeen.  CAAF held that an objective, disinterested observer, fully informed of these facts and circumstances might be left with the impression that the prosecution in a military trial has the power to manipulate which military judge presides in a given case “depending on whether the military judge is viewed as favorable or unfavorable to the prosecution’s cause…”

2. United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013).  Secretary of the Navy made widely disseminated, public comments about appellant’s guilt which left no doubt about his strong view that appellant had already received clemency from the convening authority and would receive no more.  Comments were made despite the case being considered on appeal and during the annual Naval Clemency & Parole Board (NC&PB) review process.  CAAF held that the Secretary’s “disturbing and inappropriate comments” created an intolerable strain on the public perception of the military justice system.  The NC&PB’s role was, however, limited to one of only advising the Secretary on a matter committed, by statute, to his discretion so the court’s recourse was to criticize the Secretary and warn other civilian leadership from making similar intemperate remarks.

3. United States v. Hutchinson, 2015 CCA Lexis 269 (A.F.C.C.A. 2015).  A military judge granted appellant’s request to delay his court-martial to accommodate his originally appointed defense counsel.  Trial counsel repeatedly asked the military judge for a 39a session to discuss why the defense was asking for what they felt was such an unreasonable, lengthy delay that carried with it speedy trial implications.  The staff judge advocate reached out to the chief trial judge of the circuit who then called the military judge to discuss the delay.  The Air Force CCA held that under the totality of circumstances, “we believe an objective, disinterested public would believe the appellant received a trial that was ultimately free from the effects of unlawful command influence…”  The court noted that though the government got its request for the 39a session, the military judge continued to rule in favor of the defense counsel’s positions which were consistent with each of his previous rulings.

4. United States v. Walker, 2015 CCA Lexis 539 (A.F. Ct. Crim. App. Dec. 2, 2015).  During an installation wide sexual assault prevention and response event, the SPCMCA commented on five pending cases that were rapes and “egregious, terrible cases” and told the audience that they were doing everything in their power to prosecute these cases.  In response to appellant’s UCI motion, the military judge allowed both parties to voir dire individual panel members about sexual assault in the military in general and about the SPCMCA’s remarks in particular.  At the conclusion of voir dire, the military judge ruled that the government had met is Biagase burden beyond a reasonable doubt.  The Air Force CCA concurred and found no UCI after reviewing the entire record, including the SPCMCA’s comments, the panel member’s responses during voir dire, and the resulting excusals and challenges of members.

5. United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017).  The GCMCA received a telephone call by the Air Force Chief of Staff on the same day that he referred appellant’s case to general court-martial.  The Chief of Staff told the GCMCA that the new Air Force Secretary had lost confidence in his ability to command after his highly publicized decision to set aside the findings and sentence in another rape case involving a Lieutenant Colonel.  The Chief of Staff told the GCMCA that he could retire or be removed from command.  Shortly after the phone call, the GCMCA submitted his retirement paperwork.  CAAF held that in apparent UCI claims no showing of intent or knowledge on behalf of the actor is necessary nor is there a requirement that prejudice to the accused be shown.  The court is simply concerned about the effect of the UCI.  CAAF held “we deem the totality of circumstances in this case to be particularly troubling and egregious.  As such, we conclude that an objective, disinterested observer with knowledge of all the facts would harbor a significant doubt about the fairness of the court-martial proceedings.”

V. Litigating UCI Claims

A. Actual UCI - Basic framework. United States v. Biagase, 50 M.J. 143, 150-51 (C.A.A.F. 1999).

1. The defense has the burden to present sufficient evidence, which if true, constitutes UCI, that the court-martial proceedings were unfair and that the UCI was the cause of that unfairness.

a. The threshold is low – some evidence.

b. However, there must be more than a mere allegation or general speculation; something more than just “command influence in the air.”  United States v. Johnston, 39 M.J. 242 (C.M.A. 1994).

2. The burden then shifts to the government to prove, beyond a reasonable doubt, that:

a. The predicate facts do not exist; or

b. If true, the facts do not amount to UCI; or

c. If at trial, if the facts do amount to UCI, the facts will not prejudice the trial (by producing evidence that the UCI will not affect the proceedings).

d. If on appeal, if the facts did amount to UCI, that the UCI had no prejudicial impact on the court-martial.

B. Apparent UCI – Basic Framework.  United States v. Boyce, 76 M.J. 242, 248-50 (C.A.A.F. 2017).

1. The defense has the burden to present sufficient evidence, which if true, constitutes UCI and that the UCI placed an intolerable strain on the public’s perception of military justice such that an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding.

a. The threshold is low – some evidence.

b. Unlike litigating a claim of actual UCI, there is no requirement to demonstrate prejudice to the accused.

2. The burden then shifts to the government to prove, beyond a reasonable doubt, that:

a. The predicate facts do not exist; or

b. If true, the facts do not amount to UCI; or

c. The UCI did not place an intolerable strain upon the public’s perception of the military justice system and that an objective observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding.

C. CAUTION!  Prior to Biagase, the case law is very inconsistent.  Look to pre-Biagase cases for help on what types of facts constitute UCI, but look to post-Biagase cases for how to analyze the problem. 

D. If the government fails to produce rebuttal evidence, the “military judge must find unlawful command influence exists and then take whatever measures are necessary . . . to ensure [beyond a reasonable doubt] that the findings and sentence” are not affected.  United States v. Jones, 30 M.J. 849, 854 (N.M.C.M.R. 1990).

E. Any time before authentication or action the MJ or CA may direct a post-trial session to resolve any matter which affects the legal sufficiency of any findings of guilty or the sentence.  See United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998).

F. The military judge needs to build the record.  United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994).  “Where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that this Court reviews de novo.” 

VI. Remedial Actions

A. If the defense raises sufficient evidence of UCI then the burden is going to shift to the government to prove that the facts comprising the UCI do not exist.  The government may also show that if the facts do exist, they do not amount to UCI; or if the facts do amount to UCI, that the proceedings will not be affected by UCI.  By taking remedial actions – either the convening authority before referral, or the military judge or convening authority after referral – the government may be able to prevent the UCI from tainting the proceedings.

B. The remedies that follow are not mandatory for each case.  United States v. Roser, 21 M.J. 883 (A.C.M.R. 1986).  Remedies should be appropriately tailored for each case.

C. Before trial (directed by the convening authority or SJA).

1. Adjudicative UCI.

a. Rescind or clarify letters and pronouncements.  See United States v. Rivers, 49 M.J 434. (C.A.A.F. 1998); United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002); United States v. Reed, 65 M.J. 487 (C.A.A.F. 2008).   

b. Tell the witness that they need to testify and that no one is intending to influence him or her.  See United States v. Bradley, 48 M.J. 777 (A.F. Ct. Crim. App. 1998).

c. Reprimand the offending official in front of the people that he tried to improperly influence.  United States v. Roser, 21 M.J. 883 (A.C.M.R. 1986).

2. Accusatorial UCI.

a. Rescind or clarify letters and pronouncements.  United States v. Griffin, 41 M.J. 607 (A. Ct. Crim. App. 1994). 

b. Tell the subordinate commander (in writing) that he or she is free to choose any disposition that he or she thinks is appropriate.  See generally United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004). 

c. The defense can seek to waive the issue in exchange for a favorable pretrial agreement.  United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995).

D. At trial (directed by the military judge or convening authority).

1. Adjudicative UCI.

a. Allow extensive voir direUnited States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002); United States  v. Martinez, 42 M.J. 327 (C.A.A.F. 1995). 

b. Allow extensive fact finding, to include interviews and cross examination of those who may have committed UCI.  United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003).

c. Issue curative instructions.  United States  v. Martinez, 42 M.J. 327 (C.A.A.F. 1995). 

d. Order the government to retract the offending policy statement.  United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998).

e. Grant continuances to investigate the issue.  United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998); United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010).

f. Issue a blanket order to produce all witnesses requested by the defense.  United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998).

g. Advise each witness that it is his duty to testify and assure them that no adverse consequences would follow.  United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998); United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010) (the parties fashioned a letter that was to be given to potential witnesses).

h. Order the government to transfer the person who committed UCI.  United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998); United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999). 

i. Prevent the government from calling aggravation evidence. United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992).

j. Not allow the government to attack the accused’s reputation by opinion or reputation testimony. United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992); United States v. Giarratano, 20 M.J. 553 (A.C.M.R. 1985).

k. Give the defense wide latitude with witnesses.  United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992).

l. Allow the accused to testify about what he thought witnesses might have said (as substantive evidence on merits or E&M).  United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992).

m. Preclude the government from presenting evidence through direct or cross-examination about the accused’s rehabilitative potential.  United States v. Souther, 18 M.J. 795, 796 (A.C.M.R. 1984).

n. Offer to sustain any challenge for cause against any member who was present in command during period of UCI. United States v. Souther, 18 M.J. 795, 796 (A.C.M.R. 1984); United States v. Giarratano, 20 M.J. 553 (A.C.M.R. 1985).

o. Disqualify the offending official from any reviewing authority duties.  United States v. Giarratano, 20 M.J. 553 (A.C.M.R. 1985);

p. Dismiss the case with prejudice.

(1) United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004).  CAAF upholds military judge’s decision to dismiss case with prejudice due to witness intimidation.

(2) Dismissal should be the last resort.  “If and only if the trial judge finds that command influence exists . . . and finds, further, that there is no way to prevent it from adversely affecting the findings or sentence beyond a reasonable doubt should the case be dismissed.” United States v. Jones, 30 M.J. 849, 854 (N.M.C.M.R. 1990).

2. Accusatorial UCI.  If a commander has been coerced into preferring charges that he does not believe are true, the charges are treated as unsigned and unsworn.  United States v. Hamilton, 41 M.J. 32 (C.M.A. 1994).

E. Military judges:  Remember to complete the Biagase analysis.  United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010).  The military judge must follow up on the remedies and put it on the record that the remedies were fully implemented.  Complete the Biagase analysis by saying what was done and that now the UCI that was found to exist will not prejudice the case beyond a reasonable doubt.  If the military judge finds UCI but then does not complete the analysis, then the presumption still stands that the UCI will affect the proceeding.  The record needs to reflect that the government has met its burden.

VII. WAIVER AND FORFEITURE

A. Accusatory UCI is forfeited if not raised at trial unless (1) the evidence was concealed from the accused at trial; or (2) the accused was deterred from raising it at trial by the UCI.  United States v. Drayton, 45 M.J. 180 (C.A.A.F. 1996); United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996); United States v. Richter, 51 M.J. 213 (1999).

B. Accusatory UCI can be affirmatively waived by the defense as part of a pretrial agreement, if the waiver originates from the accused.  United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995); see generally United States v. Bartley, 47 M.J. 182 (C.A.A.F. 1997).

C. Adjudicative UCI is not forfeited if the defense fails to raise the issue at trial.  United States v. Baldwin, 54 M.J. 308 (C.A.A.F. 2001); United States v. Richter, 51 M.J. 213 (C.A.A.F. 1999); United States v. Kirkpatrick, 33 M.J. 132 (C.M.A. 1991); United States v. Sparrow, 33 M.J. 139 (C.M.A. 1991); United States v. Dykes, 38 M.J. 270 (C.M.A. 1993).

D. It is unclear whether an accused can affirmatively waive adjudicative UCI or whether doing so as part of a pretrial agreement would violate public policy.  See United States v. Reynolds, 40 M.J. 198 (C.A.A.F. 1994) (no majority opinion, split on whether the defense could affirmatively waive an issue of superiority of rank in the deliberation room, which the defense did at trial).

VIII. Further Reading

A. Robert A. Burrell, Recent Developments in Unlawful Command Influence, Army Law., May 2001.

B. James F. Garrett, Recent Developments in Unlawful Command Influence, “I Really Didn’t Say Everything I Said,” Army Law., May 2002.

C. James F. Garrett, Recent Developments in Unlawful Command Influence, Army Law., May 2004.

D.Patricia A. Ham, Revitalizing the Last Sentinel: The Year in Unlawful Command Influence, Army Law., May 2005.

E. Patricia A. Ham, Still Waters Run Deep?  The Year in Unlawful Command Influence, Army Law., June 2006.

F. Mark L. Johnson, Confronting the Mortal Enemy of Military Justice:  New Developments in Unlawful Command Influence, Army Lawyer, June 2007.

G. Mark L. Johnson, Unlawful Command Influence--Still with Us; Perspectives of the Chair in the Continuing Struggle Against the "Mortal Enemy" of Military Justice, Army Lawyer, June 2008.

H. Daniel G. Brookhart, Physician Heal Thyself- How Judge Advocates Can Commit Unlawful Command Influence, Army Lawyer, March 2010.

I. James F. Garrett, Mark “Max “ Maxwell, Matthew A. Calarco, and Franklin D. Rosenblatt, Lawful Command Emphasis:  Talk Offense, Not Offender; Talk Process, Not Results, Army Lawyer, August 2014.

J. John L. Kiel, Jr., They Came in Like a Wrecking Ball: Recent Trends at CAAF in Dealing with Apparent UCI, Army Lawyer, January 2018.

 

 

APPENDIX A

THE 10 COMMANDMENTS OF UNLAWFUL COMMAND INFLUENCE

 

COMMANDMENT 1

Do not stack the panel, nor select nor remove court-members in order to obtain a particular result in a particular trial.

COMMANDMENT 2

Do not disparage the defense counsel or the military judge.

COMMANDMENT 3

Do not communicate an inflexible policy on disposition or punishment.

COMMANDMENT 4

Do not place outside pressure on the judge or court-members to obtain a particular decision.

COMMANDMENT 5

Do not intimidate witnesses or discouraged them from testifying. 

COMMANDMENT 6

Do not order a subordinate to dispose of a case in a certain way.

COMMANDMENT 7

Do not coach or mentor subordinate commanders on military justice without talking to your legal advisor first.

COMMANDMENT 8

Do not disparage the accused or tell others not to associate with him, and do not allow subordinates to do so, either.

COMMANDMENT 9

Ensure that subordinates and staff do not commit unlawful command influence, inadvertently or not.

COMMANDMENT 10

If a mistake is made, raise the issue immediately and cure with an appropriate remedy.

 

 

 

APPENDIX B

RECURRING PROBLEM:  THE POLICY STATEMENT

 

            When commanders make policy statements about the military justice system, particularly about what types of offenses warrant what kinds of courts or sentences, commanders run the risk that they will commit both adjudicative UCI (some witnesses may not now come forward on the accused’s behalf, and some panel members may now punish in accordance with what they believe the convening authority believes) and accusatory UCI (some subordinate commanders may transmit a case because that is what they think their superior commander wants them to do, not because that is their independent decision).

 

            Commanders are accustomed to coaching and mentoring subordinates in all areas of command responsibility and leadership, but the law has carved out an exception for discussion that may unlawfully influence the action of a court.  Judge Advocates must be diligent to insure that their supported commander seeks appropriate counsel before discussing criminal justice policy or the investigation or disposition of criminal matters within the command.

 

            Note that Article 37(a) exempts general instructional or informational courses on military justice if such courses are designed solely for the purpose of instructing members of the command in the substantive and procedural aspects of courts-martial.  Commanders should consider asking their staff judge advocate to provide general instruction and should allow judge advocates to give advice on particular cases.

 

            The readings below help illuminate the line between mentorship and unlawful command influence.

 

1.         United States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984)

 

The duties of a division commander as a court-martial convening authority and as the primary leader responsible for discipline within the division are among the most challenging a commander can perform.  On the one hand, effective leadership requires a commander to supervise the activities of his subordinates diligently and ensure that state of good order and discipline which is vital to combat effectiveness.  On the other hand, he must exercise restraint when overseeing military justice matters to avoid unlawful interference with the discretionary functions his subordinates must perform.  The process of maintaining discipline yet ensuring fairness in military justice requires what the United States Court of Military Appeals has called “a delicate balance” in an area filled with perils for the unwary.  Many experienced line officers have expressed similar conclusions. Excerpts from two particularly useful and authoritative examples are reproduced below.

 

Correction of procedural deficiencies in the military justice system is within the scope of a convening authority's supervisory responsibility.  Yet in this area, the band of permissible activity by the commander is narrow, and the risks of overstepping its boundaries are great.  Interference with the discretionary functions of subordinates is particularly hazardous.  While a commander is not absolutely prohibited from publishing general policies and guidance which may relate to the discretionary military justice functions of his subordinates, several decades of practical experience under the Uniform Code of Military Justice have demonstrated that the risks often outweigh the benefits.  The balance between the command problem to be resolved and the risks of transgressing the limits set by the Uniform Code of Military Justice is to be drawn by the commander with the professional assistance of his staff judge advocate.  Although the commander is ultimately responsible, both he and his staff judge advocate have a duty to ensure that directives in the area of military justice are accurately stated, clearly understood and properly executed.

 

2.         Excerpts from a letter which the Powell Committee recommended The Judge Advocate General of the Army send to officers newly appointed as general court-martial convening authorities. (Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army:  Report to Honorable Wilber M. Bruckner, Secretary to the Army, 17–21 (18 Jan 1960)).

 

Because it is of the utmost importance that commanders maintain the confidence of the military and the public alike in the Army military justice system, the following suggestions are offered you as a commander who has recently become a general court-martial convening authority, in the hope that they will aid you in the successful accomplishment of your military functions and your over-all command mission.

 

A serious danger in the administration of military justice is illegal command influence. Congress, in enacting the Uniform Code of Military Justice, sought to comply with what it regarded as a public mandate, growing out of World War II, to prevent undue command influence, and that idea pervades the entire legislation. It is an easy matter for a convening authority to exceed the bounds of his legitimate command functions and to fall into the practice of exercising undue command influence. In the event that you should consider it necessary to issue a directive designed to control the disposition of cases at lower echelons, it should be directed to officers of the command generally and should provide for exceptions and individual consideration of every case on the basis of its own circumstances or merits. For example, directives which could be interpreted as requiring that all cases of a certain type, such as larceny or prolonged absence without leave, or all cases involving a certain category of offenders, such as repeated offenders or offenses involving officers, be recommended or referred for trial by general court-martial, must be avoided. This type of directive has been condemned as illegal by the United States Court of Military Appeals because it is calculated to interfere with the exercise of the independent personal discretion of commanders subordinate to you in recommending such disposition of each individual case as they conclude is appropriate, based upon all the circumstances of the particular case. The accused's right to the exercise of that unbiased discretion is a valuable pretrial right which must be protected. All pretrial directives, orientations, and instructions should be in writing and, if not initiated or conducted by the staff judge advocate, should be approved and monitored by him.

 

The results of court-martial trials may not always be pleasing, particularly when it may appear that an acquittal is unjustified or a sentence inadequate. Results like these, however, are to be expected on occasion. Courts-martial, like other human institutions, are not infallible and they make mistakes. In any event, the Uniform Code prohibits censuring or admonishing court members, counsel, or the law officer with respect to the exercise of their judicial functions. My suggestion is that, like the balls and strikes of an umpire, a court's findings or sentence which may not be to your liking be taken as ‘one of those things.’ Courts have the legal right and duty to make their findings and sentences unfettered by prior improper instruction or later coercion or censure.

 

 

3.         Excerpts from an article by General William C. Westmoreland discussing the relationship of military justice to good order and discipline in the Army.  (Westmoreland, Military Justice—A Commander's Viewpoint, 10 Am.Crim.L.Rev. 5, 5–8 (1971)).

 

As a soldier and former commander, and now as Chief of Staff of the Army, I appreciate the need for a workable system of military justice. Military commanders continue to rely on this system to guarantee justice to the individual and preserve law and order within the military.

An effective system of military justice must provide the commander with the authority and means needed to discharge efficiently his responsibilities for developing and maintaining good order and discipline within his organization. Learning and developing military discipline is little different from learning any discipline, behavioral pattern, skill, or precept. In all, correction of individuals is indispensable.... The military commander should have the widest possible authority to use measures to correct individuals, but some types of corrective action are so severe that they should not be entrusted solely to the discretion of the commander. At some point he must bring into play judicial processes. At this point the sole concern should be to accomplish justice under the law, justice not only to the individual but to the Army and society as well.

I do not mean to imply that justice should be meted out by the commander who refers a case to trial or by anyone not duly constituted to fulfill a judicial role. A military trial should not have a dual function as an instrument of discipline and as an instrument of justice. It should be an instrument of justice and in fulfilling this function, it will promote discipline.

The protection of individual human rights is more than ever a central issue within our society today. An effective system of military justice, therefore, must provide of necessity practical checks and balances to assure protection of the rights of individuals. It must prevent abuses of punitive powers, and it should promote the confidence of military personnel and the general public in its overall fairness. It should set an example of efficient and enlightened disposition of criminal charges within the framework of American legal principles. Military justice should be efficient, speedy, and fair.

 

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