United States v. Simpson , 58 M.J. 368 ( 2003 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Delmar G. SIMPSON, Staff Sergeant
U.S. Army, Appellant
No. 02-0001
Crim. App. No. 9700775
United States Court of Appeals for the Armed Forces
Argued December 11, 2002
Decided July 1, 2003
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, BAKER and ERDMANN, JJ., joined.
Counsel
For Appellant: Frank J. Spinner, Esq. (argued); Colonel Adele
H. Odegard, Major Imogene M. Jamison, and Captain Eilin J.
Chiang (on brief); Captain Stephanie L. Haines.
For Appellee: Captain Abraham F. Carpio (argued); Lieutenant
Colonel Margaret B. Baines, Lieutenant Colonel Lauren B.
Leeker, Major Mark L. Johnson, and Captain Tami L. Dillahunt
(on brief); Major Paul T. Cygnarowicz.
Military Judges: Joseph Neurauter, Linda K. Webster, and Paul Johnston
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Simpson, No. 02-0001/AR
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 failure
to obey a lawful general order (10 specifications) in violation
of Article 92, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. § 892 (2000). Contrary to his pleas, Appellant
was convicted of failure to obey a lawful general order (3
specifications), cruelty and maltreatment of a subordinate (2
specifications), rape (18 specifications), forcible sodomy (1
specification), consensual sodomy (2 specifications), assault
consummated by a battery (1 specification), indecent assault (12
specifications), indecent acts (1 specification) and
communicating a threat (2 specifications), in violation of
Articles 92, 93, 120, 125, 128, and 134, UCMJ, 10 U.S.C. §§ 892,
893, 920, 925, 928, 934 (2000), respectively. He was sentenced
to a dishonorable discharge, confinement for 25 years, total
forfeitures, and reduction to Private (E-1). The convening
authority approved the adjudged sentence and credited Appellant
with 413 days against his sentence to confinement.
The Army Court of Criminal Appeals, in an opinion containing
an extensive description of the factual and legal background,
set aside and dismissed three of the 12 indecent assault
specifications and one of the 18 rape specifications, affirmed a
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lesser included finding of failure to obey a lawful general
order (1 specification), modified one of the indecent assault
specifications and one of the rape specifications, affirmed the
balance of the findings, reduced the confinement to 22 years,
and approved the balance of the sentence. United States v.
Simpson, 55 M.J. 674 (Army Ct. Crim. App. 2001).
On Appellant’s petition, we granted review of the following
issues:
I. WHETHER THE MILITARY JUDGE GAVE AN
ERRONEOUS INSTRUCTION REGARDING
“CONSTRUCTIVE FORCE - ABUSE OF MILITARY
POWER” WITH RESPECT TO THE RAPE AND FORCIBLE
SODOMY SPECIFICATIONS WHICH SUBSTANTIALLY
PREJUDICED APPELLANT'S CASE.
II. WHETHER APPELLANT'S DUE PROCESS RIGHTS
UNDER THE FIFTH AMENDMENT OF THE UNITED
STATES CONSTITUTION WERE VIOLATED DUE TO
UNLAWFUL COMMAND INFLUENCE AND UNFAIR
PRETRIAL PUBLICITY.
We shall first discuss the granted issue involving unfair
pretrial publicity and unlawful command influence, and then turn
to the granted issue regarding instructions on constructive
force. For the reasons set forth below, we affirm the decision
of the Court of Criminal Appeals.
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United States v. Simpson, No. 02-0001/AR
I. UNFAIR PRETRIAL PUBLICITY AND UNLAWFUL COMMAND INFLUENCE
A. BACKGROUND
The Criminal Investigation Command (CID) opened an
investigation into trainee abuse allegations against Appellant
and others in September 1996. The allegations with respect to
Appellant concerned the period between November 1994 and
September 1996 when Appellant was assigned to the Ordnance
Center and School (School), Aberdeen Proving Grounds, Maryland.
Although the School is located at Aberdeen, it is under the
immediate command of the Training and Doctrine Command (TRADOC),
Fort Monroe, Virginia.
During the initial phase of the investigation, Appellant
remained assigned to the School, which was commanded by Major
General (MG) Shadley. MG Shadley, who was not a convening
authority, exercised general command and control functions over
the School. In response to the scope of the allegations by
trainees against Appellant and others, MG Shadley organized a
“Command Response Team” to monitor the investigation, determine
whether there were systemic problems, and take preventive
action. The team was composed of personnel from the School, the
installation staff, and other tenant units on the installation.
Colonel (COL) Webb, who exercised special court-martial
jurisdiction over Appellant during the initial phase of the
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investigation, was a member of the team. Summarized reports of
the team’s activities were provided to MG Longhouser, who
simultaneously served as the garrison commander of Aberdeen
Proving Ground and commander of the Test and Evaluation Command
(TECOM), and COL Glantz, the Garrison Commander.
When concern arose that statements made by MG Shadley
during this period might be viewed as improperly influencing his
subordinates, including COL Webb, Appellant and others under
investigation were transferred from the School to the Garrison
Command at Aberdeen Proving Ground on October 4, 1996. Under
the transfer, the responsibility for disposition and action on
military justice matters regarding Appellant was removed from
COL Webb and became the responsibility of officers assigned to
the Garrison Command. The transfer did not affect MG Shadley’s
responsibility for activities at the School, including
management, training, and follow-up activities related to the
investigation.
The new general court-martial convening authority over
Appellant was the Garrison Commander, MG Longhouser. His
immediate superior was General Wilson, Commander of the Army
Material Command, located in Alexandria, Virginia. COL Glantz
became the new special court-martial convening authority.
During the fall of 1996, the CID continued its
investigation of alleged trainee abuse by Appellant and others,
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United States v. Simpson, No. 02-0001/AR
and eventually expanded the investigation to cover all Army
training installations. In light of the expanding nature of the
investigation, MG Longhouser concluded that media inquiries
would soon follow. Following recommendations from MG Longhouser
and MG Shadley, the Army held press conferences on November 7,
featuring remarks from the Chief of Staff of the Army, the
Commander of TRADOC, and MG Shadley regarding the investigation
in particular and trainee abuse in general.
Later in November, COL Glantz recommended to MG Longhouser
that the charges against Appellant be referred to a general
court-martial. On November 21, MG Longhouser referred the
charges for trial by general court-martial. In designating the
primary and alternate court-martial members under Article 25,
UCMJ, 10 U.S.C. § 825 (2000), MG Longhouser excluded all
personnel under MG Shadley’s command at the School.
Subsequently, three sets of additional charges were reviewed by
COL Glantz and referred by MG Longhouser for trial by the same
court-martial. At the initial session of the court-martial on
December 6, the military judge presiding over pretrial motions
announced that he would order the primary and alternate court-
martial panel members to avoid exposure to print and electronic
media stories concerning the investigation of sexual misconduct
at Aberdeen.
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Between November 1996 and March 1997, statements about the
investigation and remarks about policy issues related to trainee
abuse were made by the Secretary of Defense, the Secretary of
the Army, the Assistant Secretary of the Army for Manpower and
Reserve Affairs, the Chairman of the Joint Chiefs of Staff, the
Chief of Staff of the Army, and other senior civilian and
military officials. During the same period, the Secretary of
the Army established a Senior Review Panel to review actions
related to the prevention of sexual harassment. The Chief of
Staff of the Army sent a personal letter to all general officers
communicating the Army’s existing policy on sexual harassment.
In addition, the Chief of Staff mandated that all active duty
personnel receive instruction on the Army’s sexual harassment
policy.
On March 3, 1997, the defense filed a motion to dismiss the
charges with prejudice based on unfair pretrial publicity and
unlawful command influence. After considering briefs, oral
testimony, and documentary evidence, the military judge denied
the motion on April 7.
B. DISCUSSION
Appellant contends that his trial was tainted by unfair
pretrial publicity as well as unlawful command influence. Much
of the record relied upon by Appellant is related to both
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concepts. Although these concepts reflect a common interest in
ensuring impartial treatment in the judicial process, they
involve differing trial procedures and standards of review. We
shall first address unfair pretrial publicity, and then consider
unlawful command influence.
1. Pretrial Publicity
Members of the armed forces are entitled to have their
cases adjudged by fair and impartial court-martial panels whose
evaluation is based solely upon the evidence, and not upon
prejudgment that may occur as a result of pretrial publicity.
United States v. Curtis, 44 M.J. 106, 139 (C.A.A.F. 1996), upon
reconsideration, 46 M.J. 129 (C.A.A.F. 1997)(findings affirmed
and sentence reversed); see Chandler v. Florida, 449 U.S. 560,
574 (1981); Wainwright v. Witt, 469 U.S. 412, 423 (1985);
Reynolds v. United States, 98 U.S. 145, 154-57 (1878). The
doctrine of unfair pretrial publicity is based upon the
constitutional right to due process. See U.S. Const. amend. V.
The defense may raise the issue of unfair pretrial
publicity by demonstrating either presumed prejudice or actual
prejudice. To establish presumed prejudice, the defense must
show that the pretrial publicity (1) is prejudicial, (2) is
inflammatory, and (3) has saturated the community. See Curtis,
44 M.J. at 139 (citing Nebraska Press Ass’n v. Stuart, 427 U.S.
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539, 554 (1976)). Depending on the circumstances of the case,
the potential for prejudice may be ameliorated through measures
such as a continuance, change of venue, sequestration, and
regulation of public comment by counsel. See Nebraska Press
Ass’n, 427 U.S. at 552-53 (citing Sheppard v. Maxwell, 384 U.S.
333 (1966)). To establish actual prejudice, the defense must
show that members of the court-martial panel had such fixed
opinions that they could not judge impartially the guilt of the
accused. See Curtis, 44 M.J. at 139 (citing Mu’Min v. Virginia,
500 U.S. 415, 430 (1991); Irvin v. Dowd, 366 U.S. 717, 721-28
(1961)). Without such a showing, evidence that the members had
knowledge of highly significant information or other
incriminating matters is insufficient. Id.
At trial, Appellant’s motion to dismiss was accompanied by
an extensive collection of news clippings, transcripts of
television programs, videotapes, and transcripts of interviews.
The material occupies five volumes of the trial record. The
court below variously characterized material as reflecting a
“nationwide media blitz” and a “media feeding frenzy.” 55 M.J.
at 679, 682. The court used these phrases to describe the
quantity and frequency of media interest, not as an evaluation
of the content of the material from a due process perspective.
The court observed that the vast majority of the items
submitted by Appellant consisted of matter published in the two-
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week period following the Army’s initial announcement of the
investigation on November 7, 1996, and that many of the items
duplicated stories “published in various papers across the
country with little or no change in content from paper to
paper.” Id. at 679 n.5. While the court described the media
interest about trainee abuse in the Army as “extensive – even
pervasive – for approximately one month,” the court concluded
that the material was not inflammatory, noting that “the
pretrial publicity in this case was, in comparison to that found
in many civilian criminal investigations, very sparse on
details.” Id. at 679, 687. We agree.
With respect to presumed prejudice, we note that although
there was extensive media interest, Appellant has not
demonstrated that the community was saturated with inflammatory
prejudicial material. Relatively few of the articles directly
referred to Appellant. Moreover, as a precautionary measure,
the members were ordered to avoid media coverage of trainee
abuse issues. In view of these circumstances, Appellant has not
demonstrated presumed prejudice under generally applicable
principles of criminal law concerning unfair pretrial publicity.
See Rock v. Zimmerman, 959 F.2d 1237, 1252-53 (3d Cir. 1992).
With respect to actual prejudice, we note that the military
judge permitted counsel to conduct extensive individual voir
dire of the court-martial panel prior to trial on the merits.
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The examination of the members revealed that the members had
encountered very little information about the trial or related
matters. Appellant did not seek a change in venue on the basis
of unfair pretrial publicity, nor did Appellant cite unfair
pretrial publicity as the basis for challenging any of the
members of the court-martial panel. In view of the foregoing
circumstances, Appellant has failed to demonstrate that he was
the victim of actual unfair pretrial publicity. Whether such
material constituted unlawful command influence is a different
matter, which we shall consider in the following section.
2. Unlawful Command Influence
a. In general
In addition to raising the issue of unfair pretrial
publicity, Appellant contends that his court-martial was tainted
by actual unlawful command influence and the appearance of
unlawful command influence. Appellant asserts that command
influence impermissibly constrained the discretion of the
officers involved in the disposition of the charges, and that
command influence improperly infected the impartiality of the
court-martial panel that adjudged the findings and sentence in
the present case. See Art. 37, UCMJ, 10 U.S.C. § 837 (2000);
Rules for Courts-Martial 104, 401(a)(c)(2)(A) discussion.
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Our cases provide a specific procedure for use at trial to
address allegations of actual unlawful command influence.
First, the defense must “show facts which, if true, constitute
unlawful command influence.” United States v. Biagase, 50 M.J.
143, 150 (C.A.A.F. 1999). Second, the defense must 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. “The threshold for raising
the issue at trial is low, but more thanmere allegation or
speculation." Id. The defense is required to present “'some
evidence'” of unlawful command influence. Id. (quoting United
States v. Ayala, 43 M.J. 296, 300 (C.A.A.F. 1995)). Third, if
the defense has made the requisite showing under the first two
steps, the burden shifts to the Government to: (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.” Id. at 151. “Whichever tactic the
Government chooses, the quantum of proof is beyond a reasonable
doubt.” United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F.
2002)(citing Biagase, 50 M.J. at 151).
Depending on the nature of the alleged unlawful command
influence and other pertinent circumstances, the Government may
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United States v. Simpson, No. 02-0001/AR
demonstrate that unlawful command influence will not affect the
proceedings in a particular case as a result of ameliorative
actions. Such actions might include transfer of responsibility
for disposition of charges to commanders not subject to the
influence, orders protecting servicemembers from retaliation,
changes in venue, liberal grants of challenges for cause, and
the use of discovery and pretrial hearings to delineate the
scope and impact of alleged unlawful command influence. See,
e.g., Biagase, 50 M.J. at 152; United States v. Rivers, 49 M.J.
434, 443 (C.A.A.F. 1998).
During appellate consideration, the three factors are
framed in terms of evaluation of a completed trial. “[T]he
defense must (1) show facts which, if true, constitute unlawful
command influence; (2) show that the proceedings were unfair;
and (3) show that the unlawful command influence was the cause
of the unfairness.” Biagase, 50 M.J. at 150 (citing United
States v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994)).
In the course of addressing these issues, military judges
and appellate courts must consider apparent as well as actual
unlawful command influence. As we observed in Stoneman:
This court has long recognized that, once
unlawful command influence is raised, . .
it [is] incumbent on the military judge to
act in the spirit of the Code by avoiding
even the appearance of evil in [the]
courtroom and by establishing the confidence
of the general public in the fairness of the
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court-martial proceedings. . . .
Accordingly, disposition of an issue of
unlawful command influence falls short if it
fails to take into consideration the concern
of Congress and this Court in eliminating
even the appearance of unlawful command
influence at courts-martial. . . . The
appearance of unlawful command influence is
as devastating to the military justice
system as the actual manipulation of any
given trial. . . .
. . . Even if there [is] 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.
57 M.J. at 42-43 (citations, internal quotations and parentheses
omitted).
b. The relationship between publicity and unlawful command
influence
Appellant’s primary contention in the present case is that
“[t]here is presumed prejudice and apparent unlawful command
influence, because the publicity in [his] case overwhelmingly
saturated the military community, as evidenced by the newspaper
stories, national news magazine stories, transcripts of
television interviews, editorial comments, and interviews of
senior officials, which were made part of the record of trial at
Appellate Exhibit LXXV.”
The gist of Appellant’s argument is that unlawful command
influence may be established if substantial public interest in a
pending proceeding is generated when the military leadership
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United States v. Simpson, No. 02-0001/AR
provides information to the media in general, and members of the
armed forces in particular, regarding pending charges, which
then results in extensive media coverage, commentary, and
congressional interest. As we noted in United States v.
Rockwood, 52 M.J. 98, 103 (C.A.A.F. 1999), “Public criticism of
military operations – including withering critiques of strategy,
tactics, personnel policies, and human rights concerns – is
inherent in a democracy.” The prohibition against unlawful
command influence does not require senior military and civilian
officials to refrain from addressing such concerns -- including
matters affecting the training of recruits -- through press
releases, responses to press inquiries, and similar
communications.
When members of the public entrust their sons and daughters
to the military training process, they expect to receive
accurate and complete information about the quality of the
training environment, including the state of discipline. The
public also expects military leaders, who exercise both
prosecutorial and judicial functions in the military justice
process, to exercise due care in developing and executing
communications plans when potential military justice actions are
pending. As noted by the court below:
When those with the mantle of command
authority deliberately orchestrate pretrial
publicity with the intent to influence the
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United States v. Simpson, No. 02-0001/AR
results in a particular case or series of
cases, the pretrial publicity itself may
constitute unlawful command influence. Even
the perception that pretrial publicity has
been engineered to achieve a prohibited end
– regardless of the intent of those
generating the media attention – may lead to
the appearance of unlawful command
influence.
55 M.J. at 687.
In the present case, the vast majority of the comments made
by the senior military and civilian officials were not
particularly remarkable. While we must separately consider
whether any of the specific statements made by the senior
officials constituted unlawful command influence, see Part
I.B.2.c., infra, the overall tenor of statements made by senior
officials did not constitute an express or implied command
position on disposition or adjudication.
Under these circumstances, Appellant has not met his burden
under Biagase of demonstrating that the general tenor of the
leadership’s interaction with the media demonstrated either the
intent to improperly influence the court-martial process or the
appearance of such an influence. To the extent that Appellant
relies upon specific comments in the media by persons outside
the chain of command, including Members of Congress, Appellant
has not shown that the personnel involved in the disposition of
charges or on the court-martial panel were aware of such
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United States v. Simpson, No. 02-0001/AR
comments or that such comments could reasonably be perceived as
carrying the force of command influence.
c. Specific phrases within the statements made by the senior
leadership
Appellant next contends that it was inappropriate for the
senior leadership of the Department of Defense and the Army to
use command publications and instructional programs to emphasize
the Army’s “zero tolerance” policy regarding sexual harassment
in the context of a well-publicized investigation and possible
trial of service members for sexual abuse of trainees.
The implication of the phrase “zero tolerance” to personnel
in the military justice process depends on the training and
experience of the person hearing the phrase, as well as the
specific circumstances of a case. Compare United States v.
Kropf, 39 M.J. 107 (C.M.A. 1994), with United States v.
Kirkpatrick, 33 M.J. 132 (C.M.A. 1991); cf. United States v.
Wood, 25 M.J. 46 (C.M.A. 1987)(relying in part on Navy’s zero
tolerance policy to support an informant’s reliability in the
context of a search and seizure motion). The meaning of “zero
tolerance” may range from the relatively benign (e.g., a
reminder to not overlook misconduct) to the prejudicial (e.g.,
an admonition to produce a particular disposition or court-
martial result). The record of trial indicates that the persons
involved in Appellant’s case understood that the military
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United States v. Simpson, No. 02-0001/AR
leadership’s discussion of a “zero tolerance” policy on sexual
harassment referred to existing Army policy, but did not require
a particular disposition. For example, in response to defense
counsel’s questions during voir dire, Lieutenant Colonel William
Paul, III, stated that under the concept of zero tolerance, a
person who violated applicable rules would be subject to
“appropriate action” in terms of being “counseled, charged -- or
investigated and charged, or whatever. But, to me, and
especially when you are speaking of soldiers, I think that means
that you’re not going to make any exceptions as far as rank, or
position or anything like that.” The responses of the members
during voir dire reflected an understanding that the policy
stood for the proposition that allegations of sexual harassment
should not be ignored; and that the policy did not direct a
particular response to an allegation of sexual harassment or
otherwise constrain the exercise of discretion with respect to
disposition of charges or adjudication of findings or sentence.
Defense counsel interviewed the general court-martial
convening authority prior to trial, cross-examined the general
and special court-martial convening authorities during trial,
and conducted extensive voir dire of the members at trial. In
this appeal, Appellant has not demonstrated that those
individuals misapprehended the Army’s zero tolerance policy on
sexual harassment, or that they viewed it as a command
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United States v. Simpson, No. 02-0001/AR
expectation to take any particular action or range of actions
with respect to disposition of charges or adjudication of the
findings and sentence. In light of the background and
experience of the personnel involved in disposition of charges
and on the court-martial panel, as well as their responses to
questions about the term “zero tolerance,” we conclude that the
Appellant has failed to demonstrate under Biagase that the
phrase “zero tolerance” raised the issue of unlawful command
influence in the present case.
Moreover, assuming that Appellant met his burden, the
testimony of the forwarding and referring authorities, as well
as responses of the panel members on voir dire, demonstrate
beyond a reasonable doubt under the third Biagase factor that
Appellant’s trial was not prejudiced by references to the Army’s
“zero tolerance” policy under the particular circumstances of
this case. Furthermore, the manner in which the military judge
considered these issues at trial rebuts any reasonable inference
that references to “zero tolerance” created the appearance of
unlawful command influence in this case.
We emphasize that our conclusions are specific to this
case, and that the question of whether a “zero tolerance” policy
has been presented in a setting that improperly affected the
court-martial process must be addressed on a case-by-case basis.
See Kropf, 39 M.J. at 109; see also United States v. Baldwin, 54
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M.J. 308, 310 (C.A.A.F. 2001); United States v. Brice, 19 M.J.
170, 171-72 (C.M.A. 1985); United States v. Grady, 15 M.J. 275,
276 (C.M.A. 1983).
Appellant further contends that the senior military and
civilian leadership improperly influenced the disposition of
charges and actions of the court-martial by: (1) using phrases
such as “no leniency” and “severe punishment”; (2) asserting as
a factual conclusion that there had been an “abuse of power”;
and (3) articulating an incorrect legal conclusion -- that
“there is no such thing as consensual sex between drill
sergeants and trainees.” The media items submitted by Appellant
attribute these phrases to the Secretary of the Army, the
Assistant Secretary for Manpower and Reserve Affairs, the Chief
of Staff of the Army, and other senior leaders.
In the present case, the testimony of the officers involved
in the disposition decision and the answers of the panel members
during voir dire demonstrate that the persons responsible for
prosecutorial discretion and adjudication in Appellant’s court-
martial were either completely unaware of the foregoing
statements or had only a vague recollection of such comments by
the senior leadership. None of these statements were
transmitted directly to persons involved in the court-martial
process, nor were they communicated through command channels.
The phrases at issue were not otherwise repeated or disseminated
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United States v. Simpson, No. 02-0001/AR
in a manner so direct or pervasive as to undermine the
reasonableness of the assertions by persons involved in
Appellant’s court-martial either that they were not aware of
such comments or that they did not regard the media reports as
reflecting command policy.
Under these circumstances, we conclude that the Government
has demonstrated beyond a reasonable doubt that the few media
stories in which these phrases appeared did not taint
Appellant’s court-martial with unlawful command influence.
Because the Government has met the third prong of Biagase by
showing beyond a reasonable doubt that the court-martial was not
unlawfully influenced, we need not determine whether, in the
context of the present case, the phrases at issue fit within the
first two prongs of the Biagase test.
With respect to apparent unlawful command influence, we
take note of: (1) the early action to transfer Appellant to
another jurisdiction in light of the potentially improper
statements by the commander of the School; (2) the decision to
compose the court-martial panel from persons outside the School;
(3) the order of the military judge shielding members from media
stories about the investigation; (4) the wide variety of
disposition decisions in related cases growing out of the
investigation at Aberdeen Proving Ground, including dismissal of
charges, non-judicial punishment, administrative discharge, and
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referral to special as well as general courts-martial; (5) the
extensive ventilation of the unlawful command influence
allegations at trial through testimony, documentary evidence,
briefs, arguments of counsel, and a detailed written decision by
the military judge, all of which focused on the impact on
subordinate commanders and panel members; and (6) the fact that
the defense did not seek a change of venue due to the pretrial
publicity or unlawful command influence, nor did the defense
challenge any of the panel members on the basis of potential
exposure to pretrial publicity or unlawful command influence.
In light of these circumstances, the Government has adequately
demonstrated that Appellant’s trial was not tainted by the
appearance of unlawful command influence.
We emphasize, again, that our conclusion reflects the
specific circumstances of this case. Whether similar
communications in a different context would be prejudicial as a
matter of actual or apparent unlawful command influence is a
matter that necessarily must be assessed in light of the
differing context. In that regard, we note that senior
officials and the attorneys who advise them concerning the
content of public statements should consider not only the
perceived needs of the moment, but also the potential impact of
specific comments on the fairness of any subsequent proceedings
in terms of the prohibition against unlawful command influence.
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II. INSTRUCTIONS CONCERNING CONSTRUCTIVE FORCE
A. BACKGROUND
The offenses of rape and forcible sodomy both require proof
that the act was committed by force and without consent.
Article 120(a); Manual for Courts-Martial, United States (2000
ed.) [hereinafter MCM] Part IV paras. 45.b.(1)(b), 51.b.(3).
Although force and lack of consent are separate elements, our
case law recognizes that there may be circumstances in which the
two elements are so closely intertwined that both elements may
be proved by the same evidence. See United States v. Palmer, 33
M.J. 7, 9-10 (C.M.A. 1991)(“[C]onsent induced by fear, fright,
or coercion is equivalent to physical force.”). Such
"constructive force may consist of expressed or implied threats
of bodily harm." United States v. Hicks, 24 M.J. 3, 6 (C.M.A.
1987). Constructive force may be shown by proof of a coercive
atmosphere that includes, for example, threats to injure others
or statements that resistance would be futile. See MCM Part IV,
para. 45.c.(1)(b).
In the context of the special relationship between non-
commissioned officers and trainees, we have observed that the
NCO –-
cannot create by his own actions an
environment of isolation and fear and then
seek excusal from the crime of rape by
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United States v. Simpson, No. 02-0001/AR
claiming the absence of force especially
where, as here, passive acquiescence is
prompted by the unique situation of
dominance and control presented by
appellant’s superior rank and position.
United States v. Clark, 35 M.J. 432, 436 (C.M.A. 1992)(internal
quotations and citations omitted). See, e.g., United States v.
Cauley, 45 M.J. 353, 356-57 (C.A.A.F. 1996); United States v.
Bradley, 28 M.J. 197 (C.M.A. 1989). As noted by the court
below, although “rank disparity alone is not sufficient to
constitute constructive force[,] the evidence in this case
presents far more than mere rank disparity between the appellant
and his victims.” 55 M.J. at 697 n.40 (citations omitted). The
court below identified the following factors demonstrating the
relationship between the offenses at issue and Appellant’s
superior rank and position:
(1) the appellant’s physically imposing
size; (2) his reputation for being tough and
mean; (3) his position as a noncommissioned
officer; (4) his actual and apparent
authority over each of the victims in
matters other than sexual contact; (5) the
location and timing of the assaults,
including his use of his official office and
other areas within the barracks in which the
trainees were required to live; (6) his
refusal to accept verbal and physical
indications that his victims were not
willing participants; and (7) the relatively
diminutive size and youth of his victims,
and their lack of military experience.
55 M.J. at 707. Additionally, Appellant used his
authority over the victims to issue orders that placed
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United States v. Simpson, No. 02-0001/AR
them in the isolated locations where the charged rapes
occurred. See 55 M.J. at 700-06.
The military judge in the present case provided the members
with detailed instructions on each of the elements. He also
gave specific instructions on both actual and constructive
force. With respect to constructive force, he included the
following:
There is evidence which, if believed, may
indicate that the accused used or abused his
military position and/or rank and/or
authority in order to coerce and/or force
the alleged victim to have sexual
intercourse. In deciding whether the
accused possibly used or abused his
position, rank or authority and whether the
alleged victim had a reasonable belief that
death or physical injury would be inflicted
on her and that further resistance would be
futile under the totality of the
circumstances, you should consider all the
evidence presented in this case that bears
on those issues.
Prior to instructing the members, the military judge
conducted an extensive review of the proposed instructions with
counsel. During these discussions, the parties and the military
judge addressed the constructive force language in considerable
detail, including deviations from pertinent model instructions
in the Military Judges' Benchbook. See Legal Services, Dep't of
the Army, Pamphlet 27-9, Military Judges' Benchbook (2001)
[hereinafter Benchbook]. Defense counsel, who raised a number
of concerns about various proposed instructions related to the
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United States v. Simpson, No. 02-0001/AR
rape charges during these discussions, did not object to the
constructive force instruction given by the military judge. See
55 M.J. at 698.
In the present appeal, Appellant cites the differences
between the instruction given by the military judge and the
model instruction for the proposition that the instruction at
trial was objectionable. According to Appellant:
Because the instruction did not inform and
limit the panel members on how they could
utilize the evidence of the appellant’s
alleged use or abuse of military authority,
the instruction as given permitted a
loophole where none was intended to be. The
loophole was large enough so that it
permitted the panel members to find the
appellant guilty of rape as long as they
concluded the appellant used his military
power or position to order the alleged
victims to have sexual intercourse and
sodomy with him, even if the alleged victims
had no reasonable belief that death or great
bodily harm would be inflicted upon them and
had no reasonable belief that resistance
would be futile.
B. DISCUSSION
The issue of whether a court-martial panel was properly
instructed is a question of law, which we review de novo.
United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). In
the present case, the military judge provided instructions on
the pertinent elements, and the issue before us is whether the
military judge erred by not providing greater specificity or
26
United States v. Simpson, No. 02-0001/AR
amplification. Any such deficiency is waived by defense
counsel's failure to object unless the instructions were so
incomplete as to constitute plain error. See United States v.
Glover, 50 M.J. 476, 478 (C.A.A.F. 1999).
With respect to deviations from the model instructions in
the Benchbook, we note that the military judge was not required
to follow literally the non-binding examples therein. See
United States v. Bigelow, 57 M.J. 64, 67 (C.A.A.F. 2002). The
instruction actually given by the military judge, which was
discussed in detail with counsel, summarized the general concept
of constructive force under our case law. See, e.g., Cauley, 45
M.J. at 356-57. If defense counsel believed that further
amplification of the law by the military judge was warranted,
the time to request such modifications was at trial, when the
military judge could have tailored any requested wording to the
law and the evidence. Counsel was actively engaged in the
consideration of the instruction at trial. Under these
circumstances, there was no plain error.
We do not agree with Appellant’s contention that, even if
not waived, the content of the constructive force instruction
provided by the military judge was defective. Appellant
suggests that the military judge erred by providing a
constructive force instruction referring to fear of “physical
injury” rather than fear of “great bodily harm.” Fear of “great
27
United States v. Simpson, No. 02-0001/AR
bodily harm” is used in the MCM with respect to inferring
consent on the element of lack of consent. See MCM Part IV,
para. 45.c.(1)(b). With respect to the use of constructive
force to prove the element of force, however, we have held that
it is sufficient if the Government proves that the abuse of
authority placed the victim in fear of physical injury. See
Cauley, 45 M.J. at 356 (quoting Palmer, 33 M.J. at 9).
Appellant also suggests that the instruction was deficient
because it failed to focus the attention of the members on
whether the alleged victims had a reasonable belief that they
would be harmed or that resistance would be futile. The
military judge, however, adequately addressed those concerns in
the related instruction he provided on the element of force,
which he gave immediately prior to the constructive force
instruction:
In the law of rape, various types of conduct
are sufficient to constitute force. The
most obvious type is actual physical force,
that is, the application of physical
violence or power to compel the victim to
submit against her will. Actual physical
force, however, is not the only way force
can be established. Where intimidation or
threats of death or physical injury make
resistance futile, it is said that
constructive force has been applied, thus
satisfying the requirement of force.
Hence, when the accused’s actions and
words or conduct, coupled with the
surrounding circumstances, create a
reasonable belief in the victim’s mind that
28
United States v. Simpson, No. 02-0001/AR
death or physical injury would be inflicted
on her and that further resistance would be
futile, the act of sexual intercourse has
been accomplished by force.
The two related instructions sufficiently informed the members
that force was required for the crime of rape, that it could be
in the form of constructive force, and that constructive force
could be brought to bear on the victim through the use or abuse
of military authority that created a reasonable belief that the
victim would suffer physical injury or that resistance would be
futile. The military judge was not required to track literally
the guidance in the Benchbook. See Bigelow, 57 M.J. at 67.
III. DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
29