United States v. Baldwin , 2001 CAAF LEXIS 38 ( 2001 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Holly M. BALDWIN, Captain
U.S. Army, Appellant
No. 00-0104
Crim. App. No. 9800230
United States Court of Appeals for the Armed Forces
Argued October 10, 2000
Decided January 16, 2001
SULLIVAN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Alison Ruttenberg (argued); Captain Sean Park (on brief).
For Appellee: Captain Paul T. Cygnarowicz (argued); Colonel David L. Hayden,
Lieutenant Colonel Edith M. Robb, and Major Anthony P. Nicastro (on
brief).
Military Judge: Keith H. Hodges
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Baldwin, 00-0104/AR
Judge SULLIVAN delivered the opinion of the Court.
During the fall of 1997 and in February of 1998, appellant
was tried by a general court-martial composed of officer members
at Fort Bliss, Texas. Contrary to her pleas, she was found
guilty of two specifications of larceny, conduct unbecoming an
officer, and two specifications of service-discrediting conduct
(mail tampering and obstruction of justice), in violation of
Articles 121, 133, and 134, Uniform Code of Military Justice, 10
USC §§ 921, 933, and 934, respectively. The military judge then
dismissed the two larceny specifications as multiplicious with
the remaining offenses, and the members sentenced appellant to a
dismissal, 1 year's confinement, and total forfeitures on
February 6, 1998. The convening authority on May 19, 1998,
approved this sentence, and the Court of Criminal Appeals
affirmed on October 1, 1999.
On May 19, 2000, this Court granted review on the following
two issues of law:
I. WHETHER THE CONVENING AUTHORITY
EXERCISED UNLAWFUL COMMAND INFLUENCE OVER
THE PROCEEDINGS BY REQUIRING THE COURT
MEMBERS, IN THE MIDDLE OF THE TRIAL, TO
ATTEND AN OFFICER PROFESSIONAL DEVELOPMENT
PROGRAM WHERE “APPROPRIATE” PUNISHMENTS
FOR OFFICER COURT-MARTIAL DEFENDANTS WAS
DISCUSSED.
II. WHETHER APPELLANT IS ENTITLED TO
RELIEF ON SENTENCE AS REDRESS FOR THE
GOVERNMENT’S VIOLATIONS OF ARTICLE 55
WHILE APPELLANT WAS IN POST-TRIAL
CONFINEMENT.
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We hold that appellant is not entitled to relief based on her
complaints about the alleged conditions of her post-trial
confinement. See United States v. Avila, 53 M.J. 99 (2000).
Nevertheless, we set aside the decision of the appellate court
below and remand this case for a DuBay 1 hearing on the issue of
unlawful command influence. See United States v. Dykes, 38 M.J.
270 (CMA 1993).
Nine months after her court-martial, appellant signed a
statement and later filed it with the Court of Criminal Appeals.
See United States v. Grostefon, 12 M.J. 431 (CMA 1982). It said:
AFFADAVIT [sic]
November 20, 1998
I, Holly M. Baldwin, would like to make
the following statement. Shortly after I
was transferred from Fort Lewis to Fort
Bliss (fall 1997), Ft. Bliss was having a
Family Values Week. One of the Officer
Professional Development programs mandated
by Commanding General Costello was one
directed at Ethics. At that particular
OPD, one of the topics discussed was an
incident that happened with three of the
Officers in the 31st ADA BDE that were
being court-martialed. The address
included comments that the court-martial
sentences were too lenient and that the
minimum sentence should be at least one
year and that Officers should be punished
harsher than enlisted soldiers because
Officers should always set the example and
be above reproach. The day after this OPD
one of the officers from the 31st was set
to be sentenced. I believe his name was
Major Brennan. I attended this OPD, but
didn't learn of the sentencing until a
1 United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).
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United States v. Baldwin, 00-0104/AR
discussion I had with his attorney, Mr.
Jim Maus. He is an attorney in my
civilian attorney’s (Jim Darnell) law
office in El Paso, TX. Mr. Maus was Major
Brennan’s civilian counsel. Mr. Maus also
informed me that this type of OPD was
inappropriate and that it could be
considered jury tampering and he was
filing an appeal on Major Brennan’s behalf
stating such.
On the day of my conviction and
sentencing, the final part of the trial
was delayed for another OPD that was
mandatory for all Officers on post. This
OPD dealt with the situation Lt. Kelly
Flynn was embroiled [sic]. The theme
about this OPD was that she was not
punished as she should have been and that
she had basically gotten over. It was
then stated she should not have been
allowed to resign, but should have been
court-martialed. I would also like to
note here that I submitted a Resignation
for Good of Service [sic] on or about 1
May 97 and it was held and never sent up
as the regulation states. That afternoon
after the officers on my panel went to the
OPD, I was convicted and sentenced to 1
year at Ft. Leavenworth. It should also
be noted that 4 of the officers on my
panel were in the same rating chain. They
included the Brigade Commander, Brigade
Deputy Commander, the HHC Company
Commander and another BDE Primary Officer.
I swear the above mentioned statement is
true to the best of knowledge.
Signed Holly Morris Baldwin
Date November 20, 1998
(Emphasis added).
Appellant argued that “her sentence to one year in
confinement and the rejection of her request for Resignation for
the Good of the Service was the result of these actions, which
clearly constitute unlawful command influence in this case.” The
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Government did not oppose this motion to file, but in its final
brief it simply asserted that “it [appellant’s claim] lacks
merit.” The Court of Criminal Appeals summarily affirmed this
case.
___ ___ ___
I
The Government argues that appellant’s post-trial claim of
unlawful command influence should be denied because she “has
failed to meet her threshold burden of production in this case.”
Final Brief at 7. It further contends that “[a]ppellant’s own
ambiguous, self-serving, and unsubstantiated declaration does not
establish a viable claim of unlawful command influence.”
Moreover, it notes that “appellant never raised this issue at
trial” nor made any “effort to bring this allegation to the
military judge’s attention and conduct some minimal voir dire
before findings and sentence deliberations.” Id. We conclude
that none of these reasons legally justifies the lower appellate
court’s summary denial of appellant’s post-trial claim of
unlawful command influence. 2
Article 37, UCMJ, 10 USC § 837, states:
2 We reject the Government’s claim of waiver. We have never
held that an issue of unlawful command influence arising during
trial may be waived by a failure to object or call the matter to
the trial judge’s attention. Cf. United States v. Weasler, 43 M.J.
15 (1995) (pretrial agreement initiated by accused waived any
objection to unlawful command influence in the preferral and
referral of charges); United States v. Richter, 51 M.J. 213, 224
(1999).
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§ 837. Art. 37. Unlawfully influencing
action of court
(a) No authority convening a general,
special, or summary court-martial, nor any
other commanding officer, may censure,
reprimand, or admonish the court or any
member, military judge, or counsel
thereof, with respect to the findings or
sentence adjudged by the court, or with
respect to any other exercises of its or
his functions in the conduct of the
proceedings. No person subject to this
chapter may attempt to coerce or, by any
unauthorized means, influence the action
of a court-martial or any other military
tribunal or any member thereof, in
reaching the findings or sentence in any
case, or the action of any convening,
approving, or reviewing authority with
respect to his judicial acts. The
foregoing provisions of the subsection
shall not apply with respect to (1)
general instructional or informational
courses in military justice if such
courses are designed solely for the
purpose of instructing members of a
command in the substantive and procedural
aspects of courts-martial, or (2) to
statements and instructions given in open
court by the military judge, president of
a special court-martial, or counsel.
(Emphasis added.)
We have long held that the use of command meetings to
purposefully influence the members in determining a court-martial
sentence violates Article 37, UCMJ. United States v. Levite, 25
M.J. 334, 339 (CMA 1987); United States v. Cruz, 25 M.J. 326, 329
(CMA 1987); United States v. Thomas, 22 M.J. 388, 393 (CMA 1986);
United States v. McCann, 8 USCMA 675, 676, 25 CMR 179, 180
(1958). Moreover, we have also held that the mere “confluence”
of the timing of such meetings with members during ongoing
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courts-martials and their subject matter dealing with court-
martial sentences can require a sentence rehearing. See United
States v. Brice, 19 M.J. 170, 172 n.3 (CMA 1985).
Here, appellant avers that there were two command officer
meetings before and during her court-martial, which she and the
officers of her panel attended. She also avers that various
court-martial situations on base and in the Air Force at large
were discussed. Furthermore, she asserts that comments were made
that court-martial sentences were too lenient; that officers
should always be punished more harshly than enlisted persons; and
that the minimum sentences should be 1 year. Finally, appellant
points out that she, an officer, subsequently received a 1-year
sentence at her court-martial. If appellant’s averments are
true, then as in Brice, a confluence of timing and subject matter
would exist.
The Government contends, however, that appellant’s self-
serving averments are not legally sufficient (or competent) to
raise her post-trial claim. We disagree. In United States v.
Ayala, 43 M.J. 296, 300 (1995), this Court held that “[t]he quantum
of evidence necessary to raise unlawful command influence is the
same as that required to submit a factual issue to the trier of
fact.” While not particularly delineating the proof required, we
have generally held that it must be more than “mere speculation.”
See United States v. Biagase, 50 M.J. 143, 150 (1999). Here,
appellant’s post-trial statement was based on her own
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observations (cf. United States v. Ruiz, 49 M.J. 340, 348 (1998)
(no abuse of discretion for convening authority to refuse to
order post-trial hearing on basis of unsubstantiated assertions
of unlawful command influence by counsel)), and it was detailed
in nature. Cf. United States v. Johnston, 39 M.J. 242, 244 (CMA
1994) (must be more than a bare allegation). Moreover, the
record of trial, which contains an unexplained decision to delay
any sessions on the date in question until the early afternoon,
may be viewed as tending to corroborate appellant’s allegation
that there was a command meeting at that time. In the absence of
any post-trial submission from the Government, we conclude
appellant’s allegations in this context are sufficient to raise a
post-trial complaint of unlawful command influence. See United
States v. Ayala, supra (some evidence to which a member might
reasonably attach credit); see generally United States v. Ginn,
47 M.J. 236, 248 (1997) (third principle: “if the affidavit is
factually adequate on its face to state a claim of legal error. .
. .”).
Although we reject the Government’s legal insufficiency
claim, we are reluctant to order relief without a complete record
concerning appellant’s claim. A full development of the material
facts surrounding these command meetings and their effect on
appellant’s court-martial is required. See United States v.
Dykes, 38 M.J. 270; see also United States v. Fricke, 53 M.J. 149,
155 (2000). Accordingly, a DuBay hearing should be ordered. Id.
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II
We also must address appellant’s claim that her post-trial
confinement violated Article 55, UCMJ, 10 USC § 855. Her claim
is that “[w]hile confined at the USDB, [she] and her unborn child
were intentionally placed at risk by knowingly exposing [them] to
dangerous levels of lead, industrial chemicals and fumes and
potentially contaminated food and water. [She] was denied proper
prenatal care, and shackled and hand-cuffed without cause.”
Final Brief at 13. Appellant asks that we set aside her adjudged
and automatic forfeitures as a remedy for her unlawful post-trial
punishment. 3
We initially note that appellant asserts that she was 2
months pregnant when she was confined at the United States
Disciplinary Barracks on February 11, 1998. She further asserts
that she remained confined there until June of 1998, when she was
transferred to the Federal Bureau of Prisons Facility in Fort
Worth, Texas. Finally, she asserts that she was released on
August 22, 1998, 3 months before her minimum release date because
of action by the Army Clemency and Parole Board. It is conceded
that her baby was born after her release from confinement, and
there is no claim that either she or her baby was actually
3 We reject appellant’s shackle and handcuff argument because
she has not provided sufficient evidence to demonstrate that
correction officials’ use of shackles went beyond what was
reasonable to assure safe control of a new inmate. See Art. 55,
UCMJ (“The use of irons, single or double, except for the purpose
of safe custody, is prohibited.”).
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injured as a result of the alleged conditions of her post-trial
punishment.
We conclude that appellant has not demonstrated that the
averred conditions of her confinement amounted to a violation of
Article 55, UCMJ. See United States v. Avila, 53 M.J. at 101. 4
As noted above, there is no showing that she was actually pained
or injured as a result of these conditions. The absence of a
showing of pain or injury, as well as the absence of a showing of
punitive intent on the part of prison officials, undermine her
legal claim. See United States v. Sanchez, 53 M.J. 393, 395-96
(2000).
In addition, in United States v. Avila, supra at 102, this
Court rejected a convicted prisoner’s claim of improper
punishment under Article 55, UCMJ, and under the Eighth Amendment
where the “[a]ppellant ha[d] not demonstrated that the conditions
of his confinement were more adverse than those faced by civilian
prisoners whose claims of cruel and unusual punishment have been
rejected by other courts.” In view of relevant federal case law,
we conclude that appellant’s claim does not reach that level.
See Coleman v. Rahija, 114 F.3d 778, 784-85 (8th Cir. 1997) (2-
hour delay of medical services causing prisoner in labor extreme
4 We find it unnecessary for disposition of this case to
determine whether appellant exhausted her administrative remedies
to complain about her confinement conditions, to include her
assertion that Army regulations prevented her from filing an
Article 138, UCMJ, 10 USC § 938, complaint. See generally United
States v. Miller, 46 M.J. 248 (1997); United States v. Coffey, 38
M.J. 290 (CMA 1993).
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pain and suffering is legally sufficient); Archer v. Dutcher, 733
F.2d 14, 15 (2d Cir. 1984) (intentional delay in treatment
purposefully causing extreme pain and later miscarriage is
legally sufficient).
The decision of the United States Army Court of Criminal
Appeals is set aside. The record of trial is returned to the
Judge Advocate General of the Army for submission to a convening
authority for a limited hearing on the issue of command
influence. At the conclusion of the hearing, the judge will make
specific findings of fact on that issue. A verbatim record of
the proceedings will be submitted after authentication to the
Court of Criminal Appeals for further review. Thereafter,
Article 67(a)(3), UCMJ, 10 USC § 867(a)(3), shall apply.
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