United States v. Reed , 2008 CAAF LEXIS 228 ( 2008 )

UNITED STATES, Appellee
v.
Anthony L. REED, Master Sergeant
U.S. Army, Appellant
No. 07-0114
Crim. App. No. 20030921
United States Court of Appeals for the Armed Forces
Argued November 6, 2007
Decided February 12, 2008
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Patrick B. Grant (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Fansu Ku (on brief); Colonel John T. Phelps II.
For Appellee: Captain Nicole L. Fish (argued); Major Elizabeth
G. Marotta and Captain Larry W. Downend (on brief); Colonel John
W. Miller.
Military Judge: Edward J. O’Brien
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Reed, No. 07-0114/AR
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted Appellant, pursuant to his pleas, of one
specification of making a false official statement and one
specification of fraud against the United States, in violation
of Articles 107 and 132, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 907, 932 (2000). Contrary to his pleas, he
was convicted of a second specification of making a false
official statement and three specifications of larceny of
military property, in violation of Article 107, UCMJ, and
Article 121, UCMJ, 10 U.S.C. § 921 (2000). The sentence
adjudged by the court-martial and approved by the convening
authority included a bad-conduct discharge, confinement for one
year, and reduction to the lowest enlisted grade. The United
States Army Court of Criminal Appeals affirmed. United States
v. Reed, No. ARMY 20030921 (A. Ct. Crim. App. Oct. 12, 2006)
(unpublished).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE ERRED IN HIS
FINDINGS OF FACT OR CONCLUSIONS OF LAW
REGARDING UNLAWFUL COMMAND INFLUENCE.
For the reasons set forth below, we conclude that the
military judge did not err in denying Appellant’s motion for
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appropriate relief with respect to the claim of unlawful command
influence.
I. BACKGROUND
Appellant contends that the convening authority fostered a
command climate that tainted his court-martial with actual
unlawful command influence and the appearance of unlawful
command influence. See Article 37, UCMJ, 10 U.S.C. § 837(2000); Rule for Courts-Martial (R.C.M.) 104; United States v.
Stoneman, 57 M.J. 35 (C.A.A.F. 2002). Section A summarizes the
standards applicable to claims of unlawful command influence.
Section B describes the litigation of the unlawful command
influence allegations in the present case.
A. UNLAWFUL COMMAND INFLUENCE
At trial, the burden of raising the issue of unlawful
command influence rests with the defense. United States v.
Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). The defense must:
(1) “show facts which, if true, constitute unlawful command
influence” and (2) show “that the alleged unlawful command
influence has a logical connection to the court-martial, in
terms of its potential to cause unfairness in the proceedings.”
Id. (citation omitted). “The threshold for raising the issue at
trial is low, but more than mere allegation or speculation.”
Id. (citation omitted). The defense is required to present
“‘some evidence’” of unlawful command influence. Id. (quoting
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United States v. Ayala, 43 M.J. 296, 300 (C.A.A.F. 1995));
United States v. Simpson, 58 M.J. 368, 373 (C.A.A.F. 2003).
If the defense meets the burden of raising the issue, the
burden shifts to the Government. The Government must: “(1)
disprove ‘the predicate facts on which the allegation of
unlawful command influence is based’; (2) persuade the military
judge ‘that the facts do not constitute unlawful command
influence’; or (3) prove at trial ‘that the unlawful command
influence will not affect the proceedings.’” Simpson, 58 M.J.
at 373. “Depending on the nature of the alleged unlawful
command influence and other pertinent circumstances, the
Government may demonstrate that unlawful command influence will
not affect the proceedings in a particular case as a result of
ameliorative actions.” Id. “Whichever tactic the Government
chooses, the quantum of proof is beyond a reasonable doubt.”
Id. (quoting Stoneman, 57 M.J. at 41).
“In the course of addressing these issues, military judges
and appellate courts must consider apparent as well as actual
unlawful command influence.” Simpson, 58 M.J. at 374. “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
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this Court reviews de novo.” United States v. Wallace, 39 M.J.
284, 286 (C.M.A. 1994).
B. TRIAL PROCEEDINGS
Appellant, while serving in Korea, claimed the Basic
Allowance for Housing (BAH) at the rate for married personnel.
At the time, he was divorced. In that status, his BAH
entitlement was limited to the lower rate provided to unmarried
personnel. In the present case he was charged with receiving
BAH payments that substantially exceeded the payments to which
he was entitled.
Appellant filed a pretrial motion for appropriate relief on
the basis of unlawful command influence, requesting dismissal of
the charges, transfer of the case to another convening
authority, and other remedies. During the proceedings on the
motion, the military judge considered documents provided by the
parties, testimony from the convening authority, the staff judge
advocate, and other members of the command, and the statements
of panel members on voir dire.
In support of the allegation that the command climate
created unlawful command influence, the defense introduced an e-
mail from the convening authority to subordinates. The e-mail,
which was transmitted subsequent to referral of Appellant’s case
to the court-martial, addressed a variety of command management
issues. An attachment to the e-mail contained a thirty-one-page
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slide show, which included the following statement on one of the
slides: “Senior NCO and Officer misconduct -- I am absolutely
uncompromising about discipline in the leader ranks.” The slide
noted the following examples: “BAH Fraud, Fraternization, DUI,
Curfew violations, Soldier abuse, Sexual misconduct.”
The defense also presented testimony that the deputy
commander of a subordinate unit told an audience at a
“Newcomer’s Briefing” that “BAH fraud is an automatic court-
martial referral here.” The defense further offered the
testimony of a staff sergeant, who stated that soldiers in the
unit believed that BAH fraud would be handled more harshly than
other crimes. In addition, the defense presented evidence that
during the period between preferral and referral, the convening
authority had communicated with Appellant’s rater and senior
rater about his evaluation, resulting in inclusion of derogatory
information about the pending charges in his annual performance
evaluation.
With respect to the e-mail, the Government relied on
testimony and documentary evidence showing that the convening
authority, upon advice of her staff judge advocate, issued a
clarifying e-mail. In the second e-mail, the convening
authority set forth the following explanation of the statement
that she was “absolutely uncompromising about discipline in the
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leader ranks.” The second e-mail, which included bold typeface,
stated:
What that means simply is that I will abide
by and enforce Army regulations and the
Uniform Code of Military Justice as I swore
to in my oath and as I am chartered to do as
a commander. I will not look the other way,
nor apply special dispensation on
infractions by leaders (as young soldiers
sometimes feel is the case). That said,
that does NOT mean that each case is handled
in the same manner or will have identical
outcomes. Absolutely not, as a leader and
commander I am also chartered, as are you
all, to consider each case on its own
merits, taking into account the totality of
the alleged offense and the record of
performance of the individual concerned as
relayed by their written record, their chain
of command, as well as their peers,
subordinates, family and friends, or any
other appropriate witness.
With respect to Appellant’s performance evaluation, the
Government introduced evidence that Appellant’s rater had been
under the impression that he could not include evidence of
pending charges at the time he prepared the initial draft. When
the draft evaluation reached the convening authority for
administrative review in her capacity as Appellant’s commander,
she sought the advice of her staff judge advocate as to the
propriety of referencing pending charges in such an evaluation.
He advised her that upon completion of the pretrial
investigation under Article 32, UCMJ, 10 U.S.C. § 832 (2000), it
was appropriate under applicable regulations to reference
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pending charges in the performance evaluation. See Dep’t of the
Army, Reg. 623-205, Personnel Evaluation, Noncommissioned
Officer Evaluation Reporting System paras. 2-13, 3-17 (May 15,
2002). She conveyed that advice to the rater and senior rater,
noting that they were unconstrained as to the content of their
evaluation, but that she would not concur in a rating that she
believed to be incorrect. The senior rater and the rater
reexamined the regulation and the draft evaluation. After
concluding that the regulation permitted reference to derogatory
information in the evaluation following completion of the
Article 32 investigation, they revised the evaluation. As
revised, the evaluation stated that Appellant did not meet the
Army standard for integrity. In addition, both the rater and
the senior rater added negative comments about Appellant
concerning BAH fraud.
The military judge permitted extensive voir dire of the
panel members with respect to the issue of unlawful command
influence. Four panel members stated that they had received the
e-mail. One was removed upon a challenge for cause. A second
was removed upon a peremptory challenge by the defense. During
voir dire, this member recalled that the e-mail addressed the
need to make sure that “things that you’ve put in place or fixed
are still fixed.” He did not recall any specific focus on
military justice, but recalled mention of BAH fraud. In terms
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of the command’s approach, he stated that there was a philosophy
along the lines that if “something is not right you don’t do
it.”
With respect to the other two members, one said that he
remembered an e-mail that covered the need for leaders to
reinforce proper behavior. He recalled that “in that e-mail it
specifically stated somewhere along the lines that it amazes me
that, continue [sic] to see BAH fraud, something along that
line.” The member added that he did not recall an attachment to
the e-mail. He responded in the negative to the question as to
whether there was a “particular view” held by the command
structure with respect to BAH matters. The other remaining
member stated that he viewed the e-mail as focusing on standards
of importance to the command, including BAH fraud. He believed
that BAH cases were processed depending on the circumstances and
he was unaware of any pressure to handle BAH cases in a
particular manner.
Officers in Appellant’s chain of command testified that
they exercised independent judgment when they decided to prefer
and forward charges of BAH fraud to the convening authority.
The Article 32 investigating officer said he was unaware of any
command policy directing disposition of BAH fraud and that he
believed a general court-martial was appropriate for the
allegations.
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The military judge made detailed findings of fact and
conclusions of law. In his findings of fact, he found that the
actions of the convening authority with respect to Appellant’s
evaluation, which comported with applicable administrative
procedures, did not have an improper impact on the processing of
the charges against Appellant. The military judge also found
that none of the officers involved in preferring, investigating,
or forwarding the charges had been pressured into making a
particular recommendation, and that all had made a
recommendation free from influence. In addition, the military
judge found that the convening authority was not inflexible and
that she did not have a particular disposition towards punishing
certain crimes. All defense requested witnesses were willing to
testify, and there was no evidence that any witnesses were
unwilling to testify for Appellant. The military judge
concluded that the panel members were not tainted by unlawful
command influence, and that the proceedings were not otherwise
tainted by unlawful command influence.
II. DISCUSSION
On appeal, Appellant focuses primarily on apparent command
influence: “The spectre of unlawful command influence . . . so
deeply permeated [A]ppellant’s court-martial, creating the
appearance of the command influencing the proceeding, that it
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imposed an intolerable strain on the public perception of the
military justice system.” During oral argument, counsel for
Appellant also suggested that because the commander’s e-mail was
received by two members who participated in the panel’s
deliberations, the case was infected by actual unlawful command
influence.
For purposes of this appeal, we shall assume, without
deciding, that the evidence at trial was sufficient to raise the
issue of unlawful command influence. In that context, the
Government was required to demonstrate beyond a reasonable doubt
that the fairness of the proceedings was not compromised by any
unlawful command influence.
The two panel members who received the convening
authority’s e-mail were fully questioned during voir dire with
respect to whether it had an adverse impact on their ability to
render an impartial judgment. See Stoneman, 57 M.J. at 41. The
members’ answers demonstrated that they had little specific
recollection of the content of the e-mail, and that they did not
perceive that there was a command policy governing disposition
of BAH fraud cases. No panel member testified to feeling any
pressure as a result of having received the email and there is
no evidence that they believed the command expected a certain
result from the court-martial. We conclude that the Government
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met its burden of demonstrating beyond a reasonable doubt that
the case was not infected by actual unlawful command influence.
With respect to Appellant’s contention that the case was
tainted by the appearance of unlawful command influence, our
evaluation is highly case-specific. See Simpson, 58 M.J. at
376-77. In addition to considering the specific words at issue
in the context of the charged offenses, we also take into
account factors such as the means and scope of dissemination,
remedial action within the command in general and with respect
to potential court members in particular, the degree to which
the record itself demonstrates that the defense has had a full
opportunity to explore the issue, whether the Government has
been forthcoming in its response, and whether the military judge
has taken any necessary corrective action. Id. at 376.
The record in the present case reflects that the convening
authority, upon advice from her staff judge advocate, took
prompt remedial action, in the form of a corrective e-mail when
informed of possible adverse implications of the initial e-mail.
The e-mail itself was a lengthy document, in which only a small
portion contained matters of concern, and the record indicates
that few members of the command had a specific recollection of
the details of the e-mail.
Likewise, the record contains only isolated accounts of a
negative command climate adverse to the defense, none of which
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impacted witnesses or panel members. The record does not
reflect that any of the panel members attended the “Newcomer’s
Briefing” or were otherwise informed of the “automatic court-
martial referral” comment from that briefing. The discussions
about Appellant’s performance evaluation reflect a difference of
opinion over the permissible content of a noncommissioned
officer’s efficiency report. The record does not establish that
the convening authority pressured the rater or senior rater to
change their evaluations, nor does the record reflect that any
panel member was aware of these discussions.
In assessing the issue of unlawful command influence, we
take into account the full and open litigation of the issue and
the evidence adduced at trial. United States v. Campos, 42 M.J.
253, 261 (C.A.A.F. 1995). The defense had a full opportunity to
present witnesses and documents on the issue of unlawful command
influence. The Government presented extensive testimony from
the convening authority, the staff judge advocate, and members
of the chain of command about the processing of charges against
Appellant, and the defense had a full opportunity to cross-
examine these witnesses. The military judge provided counsel
with an opportunity for exploration of the pertinent issues
during voir dire of panel members. As noted above, the members
who sat on the panel did not have a specific recollection of the
negative command climate information presented by the defense.
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Under the circumstances of this case, we conclude that the
Government has met its burden of demonstrating beyond a
reasonable doubt that the fairness of the court-martial
proceedings was not compromised by unlawful command influence.
See Simpson, 58 M.J. at 376-77.
III. DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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