United States v. Howell ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
M.D. MODZELEWSKI, R.Q. WARD, J.R. MCFARLANE
Appellate Military Judges
UNITED STATES OF AMERICA
v.
STEPHEN P. HOWELL
STAFF SERGEANT (E-6), U.S. MARINE CORPS
NMCCA 201200264
GENERAL COURT-MARTIAL
Sentence Adjudged: 12 October 2012.
Military Judges: 8 January 2012 to 14 June 2012 Sessions,
LtCol R.G. Palmer, USMC; 20 August 2012 Session, Col D.J.
Daugherty, USMC; 9-12 October 2012 Sessions, Col G.W.
Riggs, USMC.
Convening Authority: Commanding General, Marine Corps
Recruit Depot/Eastern Recruiting Region, Parris Island, SC.
Staff Judge Advocate's Recommendation: Maj S.D. Manning,
USMC.
For Appellant: C. Ed Massey, Esq.; LCDR Ryan Mattina, JAGC,
USN.
For Appellee: Maj Paul Ervasti, USMC; Capt Matthew Harris,
USMC.
22 May 2014
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OPINION OF THE COURT
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MODZELEWSKI, Chief Judge:
A panel of members with enlisted representation sitting as
a general court-martial convicted the appellant, contrary to his
pleas, of violating a lawful general regulation, rape,
aggravated sexual contact, forcible sodomy, assault consummated
by battery, and adultery in violation of Articles 92, 120, 125,
128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
892, 920, 925, 928, and 934. The panel sentenced the appellant
to eighteen years of confinement, reduction to pay grade E-1,
forfeiture of all pay and allowances, and a dishonorable
discharge, and the convening authority (CA) approved the
adjudged sentence.
The appellant assigns three errors: that the guilty
findings under Articles 120, 125, and 128 were legally and
factually insufficient; that the military judge plainly erred in
providing the members a transcript to refresh their recollection
after a four-month hiatus in the trial, rather than replaying a
recording of the prior testimony; and, that the military judge’s
remedy for unlawful command influence (UCI) arising from the
Commandant of the Marine Corps’ Heritage Brief was inadequate.
Having considered the parties’ pleadings and the record of
trial, we hold that the appellant has raised some evidence of an
appearance of UCI. We further hold that the Government has not
demonstrated beyond a reasonable doubt that the appearance of
UCI did not affect the findings or the sentence. Accordingly,
we set aside the findings of guilt and the sentence, with a
rehearing permitted. 1 Arts. 59(a) and 66(c), UCMJ.
I. Background
The procedural timeline to this case is tortuous, but
central to the resolution of the issue of UCI, and so is
provided in detail. Because of the interplay between the
Heritage Brief tour and the timeline of this case, we begin with
the Heritage Brief itself.
A. The Heritage Brief
In April 2012, General James F. Amos, the Commandant of the
Marine Corps (CMC), and Sergeant Major Michael P. Barrett, the
Sergeant Major of the Marine Corps (SMMC), embarked on a tour of
all major Marine Corps installations, as well as a few other
locations where Marines were stationed, to deliver a lecture
that came to be known as the Heritage Brief. The CMC’s target
audience for the Heritage Brief was “every single staff NCO and
officer in the Marine Corps.” 2 The tour began in Florida on 2
1
We find the first assigned error to be without merit and that our resolution
of the third assigned error makes the second moot.
2
Appellate Exhibit LXXXVI at 1.
2
April 2012 and concluded in New Orleans on 24 July 2012. 3 With
some minor variance, the CMC and SMMC visited the East Coast
installations in April, the West Coast in May, and the overseas
installations in June. 4
On 19 April 2012, the CMC and the SMMC presented the
Heritage Brief at Marine Corps Recruiting Depot Parris Island,
SC., where the appellant was pending trial by general court-
martial. His trial was docketed for the week of 11 June 2012,
and the standing convening order had been modified specifically
for the appellant’s court-martial on 23 March 2012. Of the
eleven members listed on the convening order for the appellant’s
trial, eight members were present in the audience for the
Heritage Brief on 19 April 2012, which was video-recorded and
later transcribed.
The CMC’s brief lasted slightly over an hour; he began by
saying, “we are family here and like dad we need to talk because
we need to straighten a few things out.” 5 Initially, General
Amos spoke about how he prepared to assume the role of CMC, his
priorities as CMC, and his responsibility for the “spiritual
health of the Corps.” 6 For the remainder of the brief, the CMC
addressed trends and specific episodes that he viewed as
adversely affecting the Corps’ spiritual health.
First, the CMC highlighted media coverage of incidents of
indiscipline in theater and a high-visibility allegation of
hazing, and discussed how those incidents and the media coverage
reflected poorly on the Marine Corps. 7
1. General Remarks About Sexual Assault
The CMC then turned to media coverage of sexual assault
within the Marine Corps, starting with allegations arising at
the Marine Barracks in Washington, D.C. Noting that Congress
was “livid” about such incidents, General Amos informed the
audience that there were five bills pending in Congress related
to military justice, one of which proposed to remove CAs from
the sexual assault referral process because “they have no
3
AE CXXVIII at 1-2.
4
Id.5
AE LXXXVI at 2.
6
Id. at 2-7.
7
Id. at 8-9.
3
confidence in our ability or willingness to do anything about
(sexual assaults) ourselves.” 8 The CMC described that bill as
wresting control from commanders and giving it to the Department
of Justice. General Amos also discussed a breakfast meeting at
his home the prior day, at which he hosted four members of
Congress along with general officers, female officers, and the
SMMC. The CMC stated that two Congressmen abruptly left the
breakfast meeting after complaining that they didn’t trust the
Marine Corps to fix the problem of sexual assault. 9 The CMC
recounted a particularly tense conversation between himself and
one of the Congressmen about a particular sexual assault case.
The CMC related to the audience that he told the Congressman, “I
am the Commandant of the Marine Corps and I am telling you we
are going to fix it. I’m sick of it and we are fixing it.” 10
The CMC also told an anecdote about two female Marines, one
a “(g)reat young female Captain” and one “a female Master
Sergeant unbelievable, sharp -- unbelievable,” who both told him
that they had “‘been sexually assaulted at every rank [they had]
held.’” He repeated their statement and then said, “We are
going to fix it, Marines. I need your help with this. I am
done.” 11
2. Specific Comments Regarding Sexual Assault
As the CMC discussed the problem of sexual assault
within the Marine Corps, his comments included the
following:
[W]e had 348 sexual assaults in 2011 and you go –-
males in here, I know exactly what you are thinking,
well . . . it’s not true; it is buyer’s remorse; they
got a little liquored up and got in the rack with
corporal, woke up the next morning, pants were down,
what the hell happened; buyer’s remorse. Bull shit.
I know fact. I know fact from fiction. The fact of
the matter is, 80 percent of those are legitimate
sexual assault. 12
8
Id. at 10-11.
9
Id. at 16.
10
Id. at 11-12.
11
Id. at 15-16.
12
Id. at 12-13.
4
. . . .
So let’s do Math for Marines for a second. I
said that we had 348 sexual assaults that were
reported last year. Across the Nation, the experts –-
I am not talking about the experts that you don’t care
about, I am talking about experts that would have
credibility with everybody in this auditorium –- say
that sexual assault is under reported by a factor of
at least two, it could be three or four. I personally
believe it is at least two . . . could very well be
three times. 13
. . . .
I am not happy with [the problem of sexual assaults in
the Marine Corps]. It is a scar on the United States
Marine Corps. I’m ashamed of it. And I am going to
convince you that it’s real. That is my job. . . .
And if you do not believe in the statistics, just hang
with me, because I am going to make a believer out of
you because it is real. 14
3. Specific Comments Regarding Accountability
Following these remarks about sexual assault, the CMC
immediately segued into the topic of accountability:
(W)e have got a problem with accountability. I see it
across the Marine Corps. I see it in the Boards of
Inquiry, in their results and we have got an officer
that has done something that is absolutely disgraceful
and heinous and the board . . . he goes to a court-
martial and he goes before a board of colonels and we
elect to retain him. Why? Do I need this captain?
Do I need this major? I don’t. Why would I want to
retain someone like that? I see the same thing with
staff NCOs. You go before a board and the board sits
around through milk of human kindness and misguided
loyalty and says this is a good staff sergeant, this
is a good gunny, he has got 17 years in, never mind
the fact that he was sleeping with a corporal and he
is married, we already took him, we have already
hammered him, he has a letter of reprimand, let’s keep
him. Why? There is a lack of accountability that
13
Id. at 13.
14
Id. at 15.
5
just befuddles me with the commanding officers and the
senior enlisted in the Marine Corps. And I will tell
you that. I am very, very disappointed.
I see this stuff in courts-martial, I see it in
the behavior and just for the life of me I can’t
figure out why we have become so ecumenical, why we
have become so soft? Where are we going [to] keep a
sergeant that absolutely does not belong in the United
States Marine Corps. Why would we need to do that?
And the answer is we don’t.
. . . .
And I want the Staff NCOs in here and I want the
officers in here, the commanding officers, and the
sergeants major to take a hard look at how we are
doing business. If you have a Marine that is not
acting right, you’ve got a Marine that deserves to
leave the Corps, then get rid of them; it is as simple
as that. 15
The CMC then concluded his brief by discussing the special
value that the American public places on the Marine Corps and
enjoining the audience to help him “fix” this “family
business.” 16
B. The White Letters
The CMC issued two “White Letters” in conjunction with his
Heritage Brief tour.
1. White Letter 2-12: One month into the tour, the CMC
issued White Letter No 2-12, with the subject line “Sexual
Assault.” 17 The three-page letter was dated 3 May 2012 and
addressed to “All Marines.” The CMC’s message in White Letter
2-12 can be summarized as follows: sexual assault is a crime;
many Marines fail to acknowledge the scope and seriousness of
the issue; the CMC expects leadership to be engaged; and he has
convened a group of senior Marines to design a Corps-wide
campaign to address the issue. Underneath his signature, the
15
Id. at 17-18.
16
Id. at 22.
17
AE LVII at 11.
6
CMC hand-wrote: “Marines . . . leaders . . . I need your
immediate attention to this matter!” 18
2. White Letter 3-12: On 12 July 2012, the CMC issued
White Letter 3-12. 19 That letter can fairly be read as a
curative measure. Entitled “Leadership,” White Letter 3-12 was
addressed to general officers, commanding officers, officers-in-
charge, and E-9s. In pertinent part, the letter states:
While the (Heritage Brief lectures) express my strong
feelings about “getting the Corps back on a heading of
True North,” I am not directing or suggesting specific
administrative or military justice actions be taken
absent compliance with established law. My intent is
not to influence the outcome or response in any
particular case, but rather to positively influence
the behavior of our Marines across our Corps. As
senior leaders, we have the inherent responsibility to
ensure the sanctity of our justice system, this
includes the presumption of innocence unless otherwise
proven. 20
. . . .
Next, the matter of whether or not a Marine
committed a sexual assault and what should happen,
will be determined based on the facts presented. I
expect all Marines involved in the military justice
process –- from convening authorities, to members, to
witnesses –- to make their own independent assessment
of the facts and circumstances of each case. 21
C. Media Coverage
The Heritage Brief and White Letter 2-12 garnered
significant media attention and coverage. Beginning in early
May 2012, the Marine Corps Times closely covered the CMC’s tour
and remarks, frequently featuring the story on its front cover.
The appellant’s trial began on 11 June 2012; the Times edition
for that week reported on General Amos’s visit and Heritage
18
Id. at 11-13.
19
AE CXXX.
20
Id. at 1.
21
Id. at 2.
7
Brief at Marine Barracks Washington in late May. 22 The
Commandant’s tour also attracted the attention of mainstream
media: USA Today profiled the Commandant and his tour on 5 June
2012, one week prior to the appellant’s trial. 23
II. The Timeline of This Case
A. Arraignment and Initial Article 39(a) Sessions
The appellant was arraigned on 6 January 2012 and requested
trial by members with enlisted representation. By Case
Management Order (CMO) dated 15 February 2012, the military
judge, Lieutenant Colonel (LtCol) R.G. Palmer, USMC, docketed
the case for trial the week of 2-6 April 12. 24 On 23 March 2012,
the CA modified the original convening order specifically for
the appellant’s trial, changing nearly the entire venire and
including enlisted representation. On 25 March 2012, the court
held an Article 39(a), UCMJ, session to litigate numerous
defense motions. At that motions session, the parties clearly
were anticipating trial the following week, in accordance with
the CMO. For reasons not apparent in the record, the
appellant’s case did not proceed to trial the following week.
Instead, the record picks up with another Article 39(a) session
held on 1 June 2012, with all parties now clearly preparing for
trial the week of 11 June 2012. The record contains no
reference to, much less explanation for, the ten-week delay.
B. UCI Motion and Initial Ruling
During that delay, however, the CMC and SMMC presented the
Heritage Brief at Parris Island, as discussed supra, and the
defense filed a motion for appropriate relief on 26 May 2012
alleging UCI arising from that 19 April 2012 brief. 25 At the
Article 39(a) session held on 1 June 2012, the military judge
(LtCol Palmer) briefly discussed the UCI motion, noting that he
had not attended the Heritage Brief because of his judicial
position and had not read any of the extensive media coverage of
the CMC’s tour. 26 At that time, the defense counsel informed him
that the evidence in support of the UCI motion was attached to
22
AE LXXXVIII.
23
AE LXXXVII.
24
AE LV.
25
AE LVII.
26
Record at 297-98.
8
the motion. 27 The attachments included video and audio
recordings of the Parris Island brief, and numerous print media
articles covering the CMC’s tour. LtCol Palmer assured the
parties that he would review the material prior to the next
session of court on 11 June 2012.
On 11 June 2012, the parties litigated the UCI motion. The
defense played the recording of the full Heritage Brief and
offered testimony from a senior noncommissioned officer who
attended the brief. After argument on the motion, LtCol Palmer
denied the defense motion to dismiss, finding that the defense
had not met its initial burden of showing some evidence of UCI
and a connection between any UCI and the case at trial. 28 In
light of that finding, he granted no remedies, although he noted
that he would allow broad voir dire.
On 12 June 2014, prior to the arrival of the members, the
defense counsel gave notice that they would seek a writ from
this court based upon the military judge’s ruling on the UCI
motion, and requested a continuance. 29 The military judge denied
the motion for a continuance and assembled the eleven members of
the venire.
C. Voir Dire on the Heritage Brief
The members were all questioned extensively about the
Heritage Brief, White Letter 2-12, and the media coverage of
both. Individual voir dire revealed the following: eight of the
eleven members attended the Heritage Brief; many had also either
read White Letter 2-12 or the media coverage; virtually all
acknowledged a high degree of deference to the CMC, particularly
when he holds a strong opinion on a topic; they recalled the
Heritage Brief primarily focusing on two things – sexual assault
and accountability; almost all remembered and accepted as true
the CMC’s statement that 80% of sexual assault allegations are
legitimate; and, most would characterize the CMC as unhappy,
frustrated, or disappointed in his officers and senior enlisted
for their failure to hold Marines accountable.
We turn to particular responses that convey the flavor of
the voir dire responses from the panel. Two members were
particularly frank in their responses. They each opined that,
although they could remain fair and impartial, they believed
27
Id. at 315.
28
Id. at 471; AE CXIV at 20.
29
Record at 472-73.
9
other Marines sitting as panel members might be swayed by the
CMC’s remarks either to find an accused guilty or to punish him
with a punitive discharge. LtCol M stated, “I can see where
someone after the White Letter and if they sat in that meeting
they could see where there is some pressure. And the Commandant
says he’s not happy with something; I can see where some people
would feel some pressure to do something . . . I don’t want to
say their judgment is clouded but they could feel some pressure
to think one certain way.” 30 LtCol M then characterized a
possible reaction by a panel member as “[I]f it’s close, I’m on
the fence, I’m going to go with the Commandant.” 31
LtCol B also asserted his own independence, but conceded
that “I think it’s entirely possible that some people could have
been (influenced to give punitive discharges based on what the
CMC said).” 32 Both of these members referenced conversations
among fellow officers following the Heritage Brief: LtCol M
referenced conversations in which officers spoke about “undue
influence.” 33
Master Gunnery Sergeant (MGySgt) P, when asked about the
CMC’s statement that 80 percent of sexual assault allegations
are legitimate, responded, “I believe that . . . that’s his
opinion that 80 percent are true. I don’t take it to mean
though that the other twenty percent are made up.” 34 She also
acknowledged that the CMC’s remarks may have “some bearing” in
her decision-making as a panel member. 35
Master Sergeant (MSgt) H, when asked about the same remark
from the CMC, responded, “Like I said, ma’am, I would think
highly that he has (done) his homework and that he’s been
advised correctly.” 36 Later, in response to a similar question,
MSgt H replied, “[L]ike I said, he has knowledge of those
things. So if he said it happens, it happens.” 37
30
Id. at 571.
31
Id. at 572.
32
Id. at 586.
33
Id. at 566.
34
Id. at 632.
35
Id. at 634.
36
Id. at 663.
37
Id. at 665.
10
When asked what message the CMC conveyed in the Heritage
Brief, First Sergeant (1stSgt) W summed it up as follows:
“Basically . . . that senior enlisted and senior officers, we’re
not doing our jobs as far as keeping the Marines in line. He’s
tired of the sexual assaults/sexual misconduct amongst officers
and Staff NCOs, and he’s holding us accountable.” 38 This same
member later engaged in the following exchange with the trial
counsel:
Q. Do you feel . . . based on what the Commandant
said that you would be expected to find the accused
guilty?
A: If the evidence was there, yes, sir.
Q: Okay, and what if the evidence wasn’t there?
A: Then I’d have to dig deeper. 39
D. Challenges
The Government successfully challenged two members for
cause: LtCol M, explicitly on the basis of his responses to
questions concerning the Heritage Brief and its aftermath, and
1stSgt W, for issues of impartiality. The defense then
challenged all members for cause on the basis of UCI and then
followed up with specific points raised from each member’s voir
dire; upon reviewing the specifics of each challenge, LtCol
Palmer granted only two, Captain D and Gunnery Sergeant B, both
for responses concerning the effect of the CMC’s remarks.
Additionally, LtCol Palmer granted a defense challenge of a
member who had herself been the victim of a sexual assault. The
defense then exercised its peremptory challenge. Of note, the
defense was forced to use its peremptory challenge against MSgt
H, whose comments are noted above, as LtCol Palmer denied that
challenge for cause. In total, three members were excused for
cause due to their responses concerning the Heritage Brief.
E. Final Panel
At the end of a full day of voir dire, a panel of five
remained: Colonel (Col) K, LtCol B, Major (Maj) Y, MGySgt P, and
1stSgt T. All but Maj Y had attended the Heritage Brief, two
explicitly stated their acceptance of the 80% statistic quoted
by the CMC, and all five had been unsuccessfully challenged by
the defense.
38
Id. at 678.
39
Id. at 673-74.
11
F. Renewal of the UCI Motion
The following morning, 13 June 2012, the civilian defense
counsel renewed the UCI motion, arguing that the responses by
members regarding the Heritage Brief clearly established some
evidence of UCI, shifting the burden to the Government. 40 LtCol
Palmer again denied the motion, finding no actual or apparent
UCI, without reference to whether the defense had met its
initial burden of producing some evidence of UCI. 41
Additionally, and inexplicably, he noted that “for the most
part, the purposes for or the reasons for excusal of the members
had nothing to do with their participation in the Commandant’s
speech or anything having to do with the UCI issue.” 42 He also
denied the defense’s renewed request for a continuance pending a
decision by this court on a defense intended petition for
extraordinary relief and a stay of proceedings.
G. Case Begins and Stay Granted
The Government began its case-in-chief with a day of
testimony by the victim. The following day, 14 June 2014, this
court issued a stay, and the trial immediately ceased during the
Government’s examination of its second witness.
H. LtCol Palmer’s PME Lecture
One week later, while the stay remained in effect, LtCol
Palmer was asked to present a Professional Military Education
(PME) lecture to five junior officers known as “summer funners,”
student judge advocates performing active duty special work
during the summer break from law school. In his lecture, LtCol
Palmer spoke at length about the responsibilities of trial
counsel and for a shorter period of time about defense counsel
duties. Two of the officers who attended the PME provided
written statements shortly after the session. 43 One of these two
junior officers noted that he found some of the comments “odd
and somewhat bothersome,” but also believed some of the comments
were meant to be humorous. 44 The other officer did not opine as
40
Record at 748-49.
41
Id. at 750.
42
Id.
43
AE CXXIV at 7–10.
44
Id. at 7-8.
12
to whether any of the comments were made in jest, but simply
recited them. 45
Reading these two statements in tandem, it appears that
LtCol Palmer was urging these prospective judge advocates to be
aggressive when assigned as trial counsel in charging and
prosecuting their cases. Adopting a very informal or colloquial
manner of speaking, LtCol Palmer referred to panel members in
disparaging terms, calling them “knuckle-draggers” and “morons.”
He also spoke disparagingly of accused at courts-martial.
Speaking to the junior officers as prospective trial counsel,
LtCol Palmer made the following comments: “The defendant is
guilty. We wouldn’t be at this stage if he wasn’t guilty. It
is your job to prove he is guilty. You need to take him down.” 46
Moreover, despite being under a recent stay of proceedings
by this court over his ruling on the defense UCI motion, LtCol
Palmer appeared to relate to his audience many of the concerns
articulated by the defense in their motion. Specifically, he
told the junior officers that Congress was “mad” at the Marine
Corps over its handling of criminal cases and that Congress
wanted “more convictions.” 47
I. Motion to Recuse and Reassignment
LtCol Palmer’s comments during that PME lecture quickly
became a source of considerable controversy and litigation. The
following week, defense counsel in United States v. Bremer
requested that he recuse himself for lack of impartiality, and
LtCol Palmer presided over a lengthy Article 39(a) session that
explored the content and tone of his PME lecture. 48 Although he
denied the recusal motion in Bremer, LtCol Palmer shortly
thereafter requested reassignment and left the trial bench.
J. Motion to Withdraw Petition for Extraordinary Relief
On 18 July 2012, Col D.J. Daugherty, USMC, the Chief Judge
of the Navy-Marine Corps Trial Judiciary, presided over the
45
Id. at 9.
46
Id. at 9.
47
Id. at 8, 9.
48
AE CXXXIV. See United States v. Bremer, 72 M.J. 624 (N.M.Ct.Crim.App.
2013) (finding that the judge erred in not recusing himself and remanding for
resentencing).
13
unrelated case of United States v. Jiles, 49 heard the same UCI
motion regarding the Heritage Brief, found apparent UCI, and
granted significant remedies. In the wake of LtCol Palmer’s
departure from the trial bench and Col Daugherty’s ruling in
Jiles, the appellant’s defense team moved on 20 July 2012 to
withdraw its petition for extraordinary relief from appellate
review, which motion was granted by this court on 23 July 2012.
Although not entirely clear from the record, it appears that the
defense withdrew its petition based on an assumption that Col
Daugherty would reconsider all defense motions litigated to that
point in the trial.
K. Reconsideration of UCI Motion
On 20 August 2012, Col Daugherty presided over an Article
39(a) session at which he granted a motion to reconsider all
previously decided defense motions, including the UCI motion. 50
As new evidence on the UCI motion, the defense presented the
affidavits from the summer judge advocates who attended the PME
lecture and the transcript from the Bremer Article 39(a)
hearing, arguing that LtCol Palmer’s PME remarks revealed a bias
and the appearance of a taint from the Heritage Brief. Col
Daugherty raised the possibility of any number of curative
measures to include mistrial; however civilian defense counsel
specifically eschewed mistrial as a remedy. Instead, he argued
for dismissal with prejudice as the most appropriate remedy, but
alternatively suggested either a cap on confinement or removal
of a punitive discharge as an authorized punishment. 51
On 11 September 2012, Col Daugherty released his written
ruling on the UCI motion. 52 He identified specific portions of
the Heritage Brief that “arguably could raise the appearance of
UCI.” 53 Col Daugherty reversed LtCol Palmer’s initial ruling and
found that the defense had met its initial burden of raising the
issue of UCI by showing some evidence that bore a logical
connection to the charges and specifications in the court
49
No. 201200062, 2014 CCA LEXIS 151, unpublished op.
(N.M.Ct.Crim.App. 6 Mar 2014).
50
Record at 1187.
51
Id. at 1175-76, 1218-19.
52
AE CXLV.
53
Id. at 19.
14
martial. 54 However, Col Daugherty then concluded, beyond a
reasonable doubt, “that the voir dire, the liberal granting of
challenges by Judge Palmer and the remedial actions taken, the
passage of time, and the availability of all favorable defense
witnesses have removed any taint of UCI or prejudice at this
point in the trial.” 55 In conclusion, Col Daugherty suggested
that “upon resuming trial, the new trial judge may pose
additional questions to the members and may publish the
appropriate portions of CMC White Letter 3-12 as an additional
remedial measure . . . to determine if there is any residual
taint still present in the members of the panel . . . from the
Heritage Brief.” 56
L. The Trial Continues
On 9 October 2012, trial resumed with yet another military
judge presiding, Col G.W. Riggs, USMC. Although Col Riggs
conducted a brief inquiry into whether the members had attended
any Sexual Assault Prevention and Response training during the
four-month hiatus, he asked them no other questions. Most
notably, he neither asked the members whether they had read
White Letter 3-12, nor published the document to them. Later
that week, the members convicted the appellant of all charged
offenses 57 and sentenced him to eighteen years’ confinement, a
dishonorable discharge, total forfeitures, and reduction to pay
grade E-1.
III. The Law Regarding Unlawful Command Influence
Article 37, UCMJ, states “No person subject to [the UCMJ]
may attempt to coerce or, by any unauthorized means, influence
the action of a court-martial . . . or any member thereof . . .
.” 10 U.S.C. § 837 (2006).
We review allegations of UCI de novo. United States v.
Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013) (citing United States
v. Harvey, 64 M.J. 13, 19 (C.A.A.F. 2006)). Because of the
peculiar procedural history of the UCI issue in this case, we
highlight below both the trial and appellate standards for
54
Id. at 23-24.
55
Id. at 25-26.
56
Id. at 26.
57
Other than offenses charged as lesser included offenses.
15
review of allegations of UCI, as our de novo analysis and
decision are informed by the manner in which these allegations
of UCI were decided when raised at three junctures during the
trial. 58
The defense has the initial burden of raising the issue of
UCI, whether at trial or on appeal. When raising UCI at the
trial level, the defense is required to present “some evidence”
of UCI. That is, the defense must “show facts which, if true,
constitute unlawful command influence, and 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.” United States v. Biagase, 50 M.J. 143, 150
(C.A.A.F. 1999) (citations omitted).
On appeal, the appellant bears the initial burden of
showing: (1) facts that, if true, constitute UCI; (2) that the
proceedings were unfair; and (3) that the UCI was the cause of
the unfairness. Salyer, 72 M.J. at 423 (citing United States v.
Richter, 51 M.J. 213, 224 (C.A.A.F. 1999)). “Thus, the initial
burden of showing potential unlawful command influence is low,
but is more than mere allegation or speculation.” Id. (citing
United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002). As
at trial, the quantum of evidence required on appeal to raise
UCI is “some evidence.” Salyer, 72 M.J. at 423 (citation and
internal quotation marks omitted).
Once the appellant makes this initial showing, whether at
trial or on appeal, the burden shifts to the Government. To
meet this burden, the Government must prove, beyond a reasonable
doubt: (1) that the predicate facts do not exist; or (2) that
the facts do not constitute UCI; or (3) that the UCI will not
prejudice the proceedings or did not affect the findings and
sentence. Biagase, 50 M.J. at 151. “[O]nce unlawful command
influence is raised at the trial level, as it was here, a
presumption of prejudice is created. United States v. Douglas,
68 M.J. 349, 354 (C.A.A.F. 2010) (citing Biagase, 50 M.J. at
150). “To affirm in such a situation, we must be convinced
beyond a reasonable doubt that the unlawful command influence
58
The appellant contends that Col Daugherty abused his discretion in crafting
inadequate remedies of additional voir dire and publication of curative White
Letter 3-12. In fact, Col Daugherty granted no remedies, having concluded
beyond a reasonable doubt that no taint of UCI or prejudice remained at that
point in the trial. He suggested that his successor judge allow additional
voir dire and publish White Letter 3-12 to the members, but the successor
judge failed to follow that recommendation. As noted above, we review de
novo his conclusion that any appearance of UCI was cured.
16
had no prejudicial impact on the court-martial.” Id. (citing
Biagase, 50 M.J. at 150-51).
We review allegations of UCI not only for actual UCI, but
also for the appearance of UCI. “Congress and (the Court of
Appeals for the Armed Forces) are concerned not only with
eliminating actual unlawful command influence, but also with
‘eliminating even the appearance of unlawful command influence
at courts-martial.’” United States v. Lewis, 63 M.J. 405, 415
(C.A.A.F. 2006) (citing United States v. Rosser, 6 M.J. 267, 271
(C.M.A. 1979)). The mere appearance of unlawful command
influence may be “‘as devastating to the military justice system
as the actual manipulation of any given trial.’” United States
v. Ayers, 54 M.J. 85, 94-95 (C.A.A.F. 2000) (quoting United
States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991)).
The test for the appearance of UCI is objective. “We focus
upon the perception of fairness in the military justice system
as viewed through the eyes of a reasonable member of the
public.” Lewis, 63 M.J. at 415. An appearance of UCI arises
“where an objective, disinterested observer, fully informed of
all the facts and circumstances, would harbor a significant
doubt about the fairness of the proceeding.” Id.
IV. Analysis and Discussion
Approaching this case chronologically, we first conclude
that the appellant met his threshold burden at trial: that is,
the defense in its initial motion showed some evidence of UCI
that had a logical nexus to his case. We conclude that the
comments quoted supra in those sections entitled “Specific
Comments Regarding Sexual Assault” and “Specific Comments
Regarding Accountability” created an appearance of UCI. That
is, we conclude that a disinterested observer, knowing that
potential court-martial members heard this very personal appeal
in April from the CMC to “fix” the sexual assault problem, would
harbor significant doubts about the fairness of a sexual assault
trial held shortly thereafter in June. 59 Compounding the
appearance problem, the CMC was still traveling on the Heritage
Brief tour the week that the trial began, with both national and
military media coverage of his remarks in full swing.
59
Moreover, we note that, on the date of the Heritage Brief at Parris Island,
the appellant was pending trial by general court-martial for sexual assault
offenses. The panel for his specific court-martial had been identified, and
eight panel members were sitting in the audience. Those panel members heard
the CMC’s comments from a unique perspective - that of prospective members of
a pending court-martial.
17
LtCol Palmer, faced with this evidence, concluded that the
defense had failed to show any nexus between the CMC’s remarks
and the case at bar. That decision was in error. His
concomitant failure to grant any remedies represents a critical
missed opportunity to take the steps necessary to remove the
appearance of UCI from this trial. “[O]nce unlawful command
influence is raised, ‘we believe it incumbent on the military
judge to act in the spirit of the Code by avoiding even the
appearance of evil in his courtroom and by establishing the
confidence of the general public in the fairness of the court-
martial proceedings.’” United States v. Stoneman, 57 M.J. 35,
42 (C.A.A.F. 2002) (quoting Rosser, 6 M.J. at 271)). A military
judge has the inherent authority and duty to intervene and
protect the court-martial from the effects of apparent UCI.
LtCol Palmer failed to do so upon initial motion of the
appellant.
The following morning, after a lengthy day of voir dire and
challenges, the defense renewed their UCI motion, noting that
the members’ responses during voir dire established the nexus
that LtCol Palmer had found missing and shifted the burden to
the Government. Without reference to the Biagase standard and
without addressing this argument, LtCol Palmer again denied the
motion, with the curiously inaccurate explanation that most of
the challenges he granted the evening before had little or
nothing to do with the Heritage Brief or related issues. Upon
our review, this obdurate refusal to acknowledge what was
obvious – that the defense had met its low threshold burden –
and his mischaracterization of the challenges and excusals only
exacerbates the troublesome appearance of UCI.
Those concerns are further exacerbated when LtCol Palmer
gave a two-hour PME lecture to junior officers the following
week in which he highlighted Congress’s mistrust of the Marine
Corps legal system and desire for more convictions. These
comments would be deemed injudicious at any time. Given the
fact that LtCol Palmer was the presiding judge in a case in
which he denied a defense motion alleging UCI over these issues,
a decision over which this court issued a stay of proceedings,
his comments only heightened the appearance of unlawful
influence in these proceedings.
We turn next to the reconsideration of the UCI motion in
August 2012, after the stay was lifted and after LtCol Palmer
had left both this case and the trial bench. Upon his
reconsideration of the UCI motion, Col Daugherty appropriately
identified those portions of the Heritage Brief that gave rise
18
to an appearance of UCI. 60 He then properly reversed the prior
ruling, and found that the defense had met its initial burden of
showing some evidence of UCI that had a logical nexus to the
case: “Under the apparent UCI standard a disinterested observer,
fully informed of all the facts and circumstances, could harbor
significant doubt as to the fairness of these proceedings
because the members attended or are aware of the Commandant’s
Heritage Brief and its content.” 61 We agree.
But Col Daugherty then concluded “beyond a reasonable doubt
that the voir dire, the liberal granting of challenges by Judge
Palmer and the remedial actions taken, the passage of time, and
the availability of all favorable defense witnesses have removed
any taint of UCI or prejudice at this point in the trial.” 62 We
disagree.
We first examine Col Daugherty’s conclusion that “the voir
dire process effectively remove[d] the taint of the apparent
UCI.” 63 The voir dire process in fact did not remove the taint,
but instead clearly established that there was an appearance of
UCI. It revealed, inter alia, that eight of the thirteen
members had attended the brief; that they had been exposed to
media coverage of the Heritage Brief and the CMC’s tour of
Marine installations; that virtually all of them recalled and
most of them accepted the CMC’s statement that 80 percent of
sexual assault complaints are legitimate; and that they took
away from the brief that the CMC was frustrated or disappointed
with leaders that failed to hold Marines accountable for sexual
assault. At least two members, both lieutenant colonels,
conceded that prospective panel members could be influenced by
the CMC’s comments to convict or to punitively discharge. These
responses certainly do not ameliorate the taint, or in any way
restore the confidence of a disinterested observer in the
process. Lewis, 63 M.J. at 415.
We turn next to Col Daugherty’s conclusory statement that
LtCol Palmer liberally granted challenges. We disagree. Of the
five panel members who were impanelled, four had attended the
60
We adopt the findings of fact contained in AE CXLV, with the exception of
#49, which concludes that LtCol Palmer “liberally granted challenges for
cause.” Recognizing that “liberally” is a subjective standard, we
nevertheless conclude that this finding is not supported by the record.
61
AE CXLV at 23-24.
62
Id. at 25-26.
63
Id. at 25.
19
brief, two explicitly stated that they believed the CMC’s 80
percent statistic, and one of those said she believed that the
other 20% may also be true. That member also acknowledged that
the CMC’s comments may have “some bearing” on her deliberations.
LtCol Palmer denied defense challenges for cause on all those
members. Moreover, LtCol Palmer denied a challenge for cause on
MSgt H, who also accepted the CMC’s comments with a large
measure of credulity (i.e., “[L]ike I said, he has knowledge of
those things. So if he said it happens, it happens.” 64). The
defense was then forced to use its peremptory against this
member. We conclude that, although LtCol Palmer mentioned the
liberal grant mandate, he failed to actually apply it. As for
“the remedial actions taken,” upon which Col Daugherty in part
relies, the record contains no evidence of those.
Finally, we address the defense’s argument upon renewal of
their UCI motion that LtCol Palmer’s PME lecture demonstrated
that he himself was tainted by the Heritage Brief when it was
introduced into evidence at this trial. While we agree with Col
Daugherty’s conclusion that LtCol Palmer “was not influenced or
biased in any rulings or actions by the Heritage Brief,” 65 that
conclusion fails to recognize the appearance of taint caused by
LtCol Palmer’s remarks about Congressional and CMC disapproval
immediately on the heels of the litigation of the UCI motion.
In sum, contrary to Col Daugherty’s conclusion in the
middle of trial, we find that the appearance of UCI had actually
worsened with the voir dire, the less-than-liberal rulings on
challenges, LtCol Palmer’s refusal to acknowledge that the
burden had shifted, and his subsequent remarks at the PME
lecture. Col Daugherty’s failure to grant any remedies, having
found apparent UCI, represents another critical missed
opportunity to remove the taint of apparent UCI from this trial.
Finally, we turn our attention to 11 October 2012, when
this trial reconvened with members to pick up in the middle of
the Government’s case-in-chief. Despite the fact that the issue
of UCI had now been litigated on three occasions, the presiding
judge failed to even mention, much less publish and instruct
upon, the curative White Letter 3-12. This juncture was the
last best chance to persuade a disinterested observer of the
fairness of these proceedings, and that opportunity was lost.
64
Record at 665.
65
AE CXLV at 25.
20
Upon our de novo review of this entire record, we find an
appearance of unlawful command influence. An objective,
disinterested observer, fully informed of all these facts and
circumstances, would harbor a significant doubt as to the
fairness of these proceedings in which members of the panel
appear influenced by the CMC’s brief, LtCol Palmer ruled
erroneously on the UCI motion and failed to shift the burden to
the Government, and successor judges failed to cure that taint.
In our view, this fosters the “‘intolerable strain on public
perception’ of the military justice system which the
proscription against unlawful command influence . . . guards
against.” Salyer, 72 M.J. at 427.
We now test for prejudice. Id. Typically, the question of
prejudice hinges in part on whether any remedial measures taken
by the military judge were sufficient to cleanse the trial, but
here there are none for us to consider. Regardless, “the
ultimate question is whether the Government has convinced us
beyond a reasonable doubt that ‘the disinterested public would
now believe that [Appellant] received a trial free from the
effects of unlawful command influence.’” Id. (quoting Lewis, 63
M.J. at 415).
“A sometime problem with an effects-based prejudice test is
that one cannot ultimately know what would have happened
differently . . . .” Id. We do not know what the verdict or
sentence would have been had LtCol Palmer found that the defense
met its initial burden, that the Government did not meet its
burden, and significant remedies were granted (i.e.,
supplemental questionnaires, a venire restricted to members who
had not attended the brief, or several additional peremptory
challenges). What we do know is that those remedies, combined
with a genuine application of the liberal grant mandate would
have drastically, if not completely, altered the composition of
this panel.
We are not convinced beyond a reasonable doubt on appeal
that the Government has met its burden of demonstrating that the
findings and sentence were not affected by the appearance of
UCI. We specifically reject Col Daugherty’s conclusion that the
apparent UCI had cured itself with voir dire, challenges, and
the passage of time. As a result, an objective member of the
public would be left with the appearance and the impression that
LtCol Palmer’s flawed rulings, both on the UCI motion and on
defense challenges, infected the verdict and sentence: the
members whom LtCol Palmer impanelled as the appellant’s jury sat
21
for the remainder of the trial, with no curative action or
instruction by either of the two successive judges.
We turn now to the question of remedy. In both Lewis and
Salyer, the Court of Appeals for the Armed Forces dismissed all
charges with prejudice, as a rehearing would have left those
appellants in a position in which “‘from an objective
standpoint, the Government has accomplished its desired end and
suffered no detriment or sanction for its actions.’” Salyer, 72
M.J. at 428 (quoting Lewis, 63 M.J. at 416.) Those cases turned
on quite particular facts, in which the Government, acting
through its trial counsel, had successfully sought the removal
of a presiding judge. This case is neither Lewis nor Salyer.
In contrast, on the specific facts of this case, allowing a
retrial does not unfairly advantage the Government.
V. Conclusion
The findings of guilty and the sentence are set aside. A
rehearing may be ordered. The record is returned to the Judge
Advocate General for transmission to the CA for such further
action as is deemed appropriate, consistent with this decision.
United States v. Abdirahman, 66 M.J. 668, 683 (C.A.A.F. 2008).
Judge McFARLANE concurs.
WARD, Senior Judge (concurring in the result):
Because the initial trial judge failed to recognize the
potential impact of the Heritage Brief on the prospective
venire, particularly once he excused three members for cause due
to their responses, I find error. Furthermore, I agree with the
majority that under the unique circumstances of this case
dismissal without prejudice is the appropriate remedy. The
majority’s view of the voir dire here could be read as not only
failing to cure the appearance of unlawful influence but also
failing on an implied bias analysis. United States v. Howell,
No. 201200264, unpublished op., slip op. at *9-11, 19-20
(N.M.Ct.Crim.App. 22 May 2014). To that extent, I write
separately to emphasize what I see as a critical distinction
between testing a prospective member for implied bias and, more
importantly, determining whether, once raised, the appearance of
unlawful influence is effectively cured.
22
Both tests are similar in that they focus on an objective
observer’s viewpoint. United States v. Stoneman, 57 M.J. 35, 42
(C.A.A.F. 2002). The former looks to whether an objective
observer would believe that most members in the same position
would be prejudiced. United States v. Napolitano, 53 M.J. 162,
167 (C.A.A.F. 2000). In contrast, the latter examines whether
as “viewed through the prism of [United States v.] Biagase[, 50
M.J. 143, 150 (C.A.A.F. 1999)] and the presumption of prejudice”
that same observer, initially concerned over the appearance of
unfairness, now no longer harbors any significant doubt as to
the impartiality of the member. Stoneman, 57 M.J. at 42.
Furthermore, once raised the latter test requires proof beyond a
reasonable doubt.
The majority does not hold or intimate that the Heritage
Brief constitutes unlawful influence on any tribunal or that it
per se creates any appearance thereof. I agree. Much of the
Heritage Brief in my mind reflects lawful command influence.
Reasonable minds can disagree as to attendant meanings from
certain remarks. In many ways, the CMC’s remarks in regard to
sexual assault reflect a broader, ongoing debate that extends
well beyond our military.
Regardless of how one characterizes any particular remark,
the fact remains that four of the five members ultimately
impaneled heard the brief approximately eight weeks before
trial. Those four members likely knew of their upcoming jury
duty when they heard the brief. By the time they entered the
courtroom, the Heritage Brief was garnering an ever increasing
amount of media attention, a fact borne out during voir dire.
Finally, the instant case framed many of the same issues
addressed during the Heritage Brief, including common
perceptions of sexual assault allegations, the issue of consent,
and accountability for offenders. All these facts were before
the military judge when the defense voiced their concern over
the appearance of unlawful influence on the panel. Still, the
military judge denied the defense motion and proceeded with voir
dire. 1
1
When initially discussing the defense motion, the military judge
acknowledged that effective remedies may need to be employed depending on the
evidence put forth. Record at 302-03. He also indicated to counsel that
23
General and individual voir dire spanned over 337 pages of
transcript and lasted approximately nine hours. True, the
military judge allowed extensive questioning on the subject of
sexual assault, the Heritage Brief, and an assortment of related
topics. But he failed to exercise much, if any, control over
the questioning, which at times delved into largely irrelevant
matters beyond the members’ knowledge.
Like the majority, I find that the voir dire, while
extensive, was largely ineffective in resolving any appearance
of influence on the panel from the Heritage Brief. Despite this
issue being raised, the military judge avoided the subject
altogether during his own group voir dire and he gave no
prophylactic instructions to the panel. 2 Moreover, even though
he may have intimated at the onset that he would liberally grant
challenges, he failed to do so. Instead, he appeared satisfied
with simply allowing both parties unfettered access while
exercising little control over the end result or attendant
effects. Once voir dire was complete, the military judge faced
one additional key fact – his excusal of three members for the
very concerns articulated by the defense.
The very issue complained of by the defense, namely that a
reasonable member of the public could perceive certain remarks
from the Heritage Brief as influencing a court-martial member’s
views on evidence and punishment, was readily apparent by the
end of voir dire when the military judge excused three members
for cause based on their responses. Trial judges must remain
vigilant when, in cases such as these, the unique confluence of
timing and subject matter of comments from a commander, senior
official or service chief implicate similar issues in a pending
court-martial. United States v. Dugan, 58 M.J. 253, 258
voir dire on the subject of the Heritage Brief and the ensuing media
attention in recent cases “has been very liberal.” Id. at 306. Later when
discussing voir dire with counsel, he acknowledged the need for “wide
latitude” on these matters and his obligation to “jump in there and ask
questions to really see the impact of the [CMC]’s speech on these particular
members in this case.” Id. at 480-81.
2
On one occasion, the military judge interrupted detailed defense counsel
during individual voir dire and instructed the member to “[p]ut the
Commandant’s speech completely out of [her] mind.” Record at 654. Other
than this one instance, the military judge made no other foray into the
subject with either the panel or any individual member.
24
(C.A.A.F. 2003) (citing United States v. Baldwin, 54 M.J. 308,
310 (C.A.A.F. 2001)).
The initial military judge should have reconsidered his
earlier ruling, found the appearance of unlawful influence on
the venire sufficiently raised, and then turned to the subject
of curative measures. Had he done so, as the majority points
out, he would have had a wide range of options. At a minimum,
however, he should have reconsidered his rulings on challenges
for cause and excused any remaining member whose responses did
not remove any lingering doubt as to the appearance of influence
– such as Master Gunnery Sergeant P, whose disavowals of any
influence from the brief, see Howell, slip op. at *10-11, 19-20,
were less than resounding.
Once the appearance of unlawful influence on a venire is
raised, military judges must determine whether the voir dire as
a whole resolved the appearance of unfairness in the mind of the
objective observer. Stoneman, 57 M.J. at 42. That is an
additional task beyond determining whether implied bias exists.
A military judge must gauge the candor and content of each
member’s response with caution before concluding that the
objective observer no longer harbors any significant doubt as to
the fairness of the proceedings. That may require affirmative
steps beyond simply providing wide latitude during voir dire.
Our superior court has not definitively addressed the
interplay between member disqualification for implied bias and
curing the taint stemming from apparent UCI on a prospective
venire. Considering the differing burden allocation, the
quantum of proof required, and the heightened sensitivity
attendant to the issue of unlawful command influence, I agree
with the majority that this voir dire failed to effectively
remove the appearance of unlawful influence.
As to the nearly four-month delay before trial recommenced,
we cannot assume that these five members were privy to White
Letter 3-12. Moreover, as explained supra, these five members
already heard the testimony of the victim and a significant
portion of the testimony of the Government’s principal
corroborating witness before trial recessed, and each reviewed a
transcript of that same testimony when trial recommenced.
Therefore, I am not convinced that the delay itself ameliorated
25
the taint. Similarly, the fact that the military judge
presiding when trial recommenced failed to heed Colonel
Daugherty’s suggested prophylaxis and instruct the panel on
White Letter 3-12 offers little comfort to the concerned
observer.
The appearance of unlawful influence on a venire requires
heightened vigilance in the courtroom beyond that normally
afforded to implied bias. Although both tests rely on an
objective viewpoint, apparent unlawful command influence, with
its presumptive prejudice, requires a more stringent test since
there already exists a jaundiced view in the eyes of the
objective observer. Because the initial military judge failed
to do more than simply test for implied bias and that failure
prejudiced the appellant, I concur with the relief granted in
the majority opinion.
For the Court
R.H. TROIDL
Clerk of Court
26