United States v. Proctor

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32554
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UNITED STATES
Appellee
v.
Eric R. PROCTOR
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 4 June 2020
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Military Judge: Christina M. Jimenez.
Approved sentence: Bad-conduct discharge and reduction to E-3. Sen-
tence adjudged 24 August 2018 by SpCM convened at Schriever Air
Force Base, Colorado.
For Appellant: Major David A. Schiavone, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Major Jessica L. Delaney, USAF; Mary
Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Chief Judge
J. JOHNSON and Judge KEY joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
POSCH, Judge:
A special court-martial composed of officer and enlisted members found Ap-
pellant guilty, contrary to his pleas, of six specifications of willfully disobeying
a lawful command from his squadron commander, one specification of assault
United States v. Proctor, No. ACM S32554
consummated by a battery, and one specification of wrongfully communicating
a threat, in violation of Articles 90, 128, and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 890, 928, 934. 1 Appellant was sentenced to a bad-
conduct discharge, hard labor without confinement for three months, and re-
duction to the grade of E-3. The convening authority approved the bad-conduct
discharge and the reduction in grade, and disapproved the hard labor without
confinement.
Appellant raises four issues on appeal: (1) whether the military judge erred
when she found six no-contact orders to be lawful; (2) whether the military
judge erred in denying Appellant’s request for an instruction on self-defense to
the assault consummated by a battery offense; (3) whether the military judge’s
failure to sua sponte instruct on defense of property as a defense to the assault
consummated by a battery offense was plain error; and (4) whether there was
evidence of unlawful command influence (UCI) when Appellant’s commander
held a commander’s call to address his squadron’s noncommissioned officer
(NCO) “problem” just over one year before Appellant’s court-martial.
We find no prejudicial error and affirm.
I. BACKGROUND
Appellant’s convictions are the result of his conduct with Airmen who were
assigned with Appellant to the security forces squadron at Schriever Air Force
Base, Colorado, to include interactions he had with his girlfriend, Staff Ser-
geant (SSgt) CM.
Appellant, his three children, and SSgt CM shared an off-base apartment
in Colorado Springs, Colorado. On Thanksgiving Day in 2016, SSgt CM invited
SSgt AG and junior Airmen assigned to her flight to celebrate the holiday in
her home. Appellant returned to the apartment after his shift and drove out
the Airmen, angry that guests were in his home. While doing so, Appellant
strangled SSgt AG by grabbing his throat with Appellant’s hand after SSgt AG
came to the defense of an Airman whose presence Appellant found especially
provoking. In a second incident, in December 2016, after SSgt CM and Appel-
lant separately returned home from a squadron Christmas party, SSgt CM
came towards Appellant with a knife and Appellant responded by drawing a
gun before the incident deescalated.
1 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Rules
for Courts-Martial (R.C.M.), and Military Rules of Evidence are to the Manual for
Courts-Martial, United States (MCM) (2016 ed.).
2
United States v. Proctor, No. ACM S32554
Appellant’s commander, Lieutenant Colonel (Lt Col) MS, was unaware of
Appellant’s conduct on Thanksgiving and after his squadron’s Christmas party
when he issued Appellant an order to refrain from having any contact or com-
munication with SSgt CM. 2 That first no-contact order was given in February
2017 after Lt Col MS received a report from his NCOs that Appellant had
strangled SSgt CM in their apartment and threatened to kill her. In time,
Lt Col MS issued an additional six commands in succession, continuing his or-
der that Appellant refrain from communicating and having contact with SSgt
CM when a preceding order was about to expire. Appellant willfully disobeyed
each of the six orders, including during the time that Lt Col MS had ordered
Appellant into pretrial confinement, and after Appellant’s release from pretrial
confinement over a year before trial.
II. DISCUSSION
A. Legality of the No-Contact Orders
The Government charged Appellant with disobeying the six orders, and
grouped the violations under six specifications, one for each order it alleged
Appellant disobeyed. At trial, Appellant challenged the six orders claiming
they did not serve a valid military purpose and were thus unlawful. The mili-
tary judge found the orders were lawful and issued a written ruling denying
Appellant’s motion to dismiss the six specifications. 3 Appellant renews his
challenge in this appeal.
1. Additional Background
In February 2017, SSgt CM contacted her supervisor because she and Ap-
pellant were in a physical altercation and she needed help. Her supervisor and
first sergeant, both senior NCOs, responded to the shared residence and ob-
served Appellant was emotionally distraught. SSgt CM reported Appellant had
strangled her and she had scratched Appellant’s face trying to get away. She
further stated Appellant had threatened to kill her. Civilian law enforcement
personnel were called to respond to the incident, but neither Appellant nor
SSgt CM were willing to cooperate with the police. On 21 February 2017, their
squadron commander, Lt Col MS, issued no-contact orders to both Appellant
2Lt Col MS issued a reciprocal order and subsequent orders to SSgt CM to refrain from
all communication and contact with Appellant.
3Appellant was convicted of violating six orders issued on 22 March 2017, 19 May
2017, 19 June 2017, 1 August 2017, 31 August 2017, and 22 September 2017.
3
United States v. Proctor, No. ACM S32554
and SSgt CM. Appellant’s order expired on 7 March 20174 and was not con-
tested at trial or on appeal.
After the order expired, on 18 March 2017 local police responded to Appel-
lant’s residence in response to an allegation that Appellant had choked or
beaten SSgt CM’s nine-week-old puppy after she left for work. Lt Col MS was
briefed on the incident by the NCOs and then spoke with SSgt CM. She related
the February incident was “not the first time [Appellant] put his hands on
[her]” and she “can’t count how many times that [Appellant] choked [her] out
until [her] eyes were blood red.” Lt Col MS recalled seeing SSgt CM on duty
and observing her eyes were unusually red, which at the time she attributed
to a sneeze. 5
On 22 March 2017, Lt Col MS issued a second order to Appellant command-
ing him to have no communication or contact with SSgt CM for two months.
He based his decision to issue this and subsequent orders on his years of lis-
tening to victims of domestic violence, concluding that SSgt CM was caught in
a cycle of violence and Appellant would “harm things that are precious to [her]”
such as her puppy. Lt Col MS saw a pattern whereby neither NCO was willing
to cooperate with civilian police, and the harm done to SSgt CM’s puppy
showed an “escalation of the domestic violence” in their relationship “and it’s
just going to get worse.” Lt Col MS explained he issued the order for SSgt CM’s
protection and for good order and discipline, noting he was aware of “two vio-
lent interactions that are happening in [his] unit by two people that are sup-
posed to be NCOs leading [his] [A]irmen.”
Before the second no-contact order was set to expire on 22 May 2017, Lt Col
MS learned Appellant posted a message on Facebook, sometime between 10
and 21 May 2017, that read:
What ether should I drop first? Shots Fired or Officer Down?
Once them shi[*]s drop then I’ll go ahead and drop that joint I
got . . . . Had to kick Lee Lee out for flaugin and workin for 12.
Appellant’s friend, SSgt JP, who was also a member of the squadron, saw Ap-
pellant’s Facebook post and responded, “some mofos only got a few hours left”
followed by an image of three skulls. After SSgt JP’s post, Appellant responded
indicating he “liked” SSgt JP’s post via Facebook.
4Lt Col MS testified he allowed the order to expire because “there was no police action
being taken downtown” or “other incidents of violence,” and he learned from NCOs in
the squadron that Appellant and SSgt CM “were working through their situation.”
5 Lt Col MS acknowledged in his testimony that after he met with SSgt CM in regard
to the puppy incident he had “seen her come to work with burst capillaries in her eyes.”
4
United States v. Proctor, No. ACM S32554
Lt Col MS did not initially understand Appellant’s Facebook post, but found
it unusual that a security forces NCO would post “Shots Fired,” and “Officer
Down.” He soon learned “Lee Lee” was the nickname for Mr. LA, a former Air-
man and one-time friend of Appellant who was married to an NCO in his
squadron. Lt Col MS was aware that Mr. LA, his wife, and several members of
the squadron had written statements that were used as evidence in nonjudicial
punishment proceedings alleging that Appellant had violated the second no-
contact order. 6 Lt Col MS learned “flaugin” was slang for lying or snitching,
and “workin for the 12” meant working for the police. Mr. LA’s wife understood
“Shots Fired” and “Officer Down” as “referring to [her] husband” who was a
civilian member of law enforcement. Mr. LA considered the posts to be a threat
directed at him and was concerned to the point that he retrieved and loaded
his gun and then stayed up late in the event that Appellant or someone on
Appellant’s behalf might act on the threat.
Lt Col MS understood the Facebook post as an escalation of threats towards
members of his squadron for cooperating and making statements against Ap-
pellant. On 19 May 2017, Lt Col MS continued the no-contact order and ex-
panded its scope to include additional personnel. 7 Lt Col MS was concerned
Appellant “would reach out to intimidate, threat[en] or harass either [SSgt
CM] or any of these people if [Lt Col MS] didn’t have a no-contact order in
place.” Around the same time he issued the expanded order, he learned of other
allegations of violent acts that Appellant had committed against SSgt CM and
threats Appellant made against others. This included the allegation of violence
on Thanksgiving and that SSgt CM pulled a knife on Appellant and Appellant
in turn pulled a gun on her after the squadron’s Christmas party. Lt Col MS
had also heard that Appellant had made threats to “go after” members of the
squadron who had made statements against Appellant.
Lt Col MS continued the series of no-contact orders until Appellant’s legal
proceedings concluded. 8 Lt Col MS testified he issued the orders because of the
ongoing court-martial proceedings and to protect SSgt CM because “their toxic,
6Before the Facebook post, on 10 May 2017, Lt Col MS offered nonjudicial punishment
to Appellant under Article 15, UCMJ, 10 U.S.C. § 815, for allegedly violating the sec-
ond no-contact order on divers occasions. Appellant declined nonjudicial punishment
and demanded trial by court-martial.
7Lt Col MS expanded the order to include ten named individuals for the preservation
of good order and discipline of his unit.
8 Lt Col MS preferred the original charges on 7 June 2017. Although those charges
were subsequently withdrawn and dismissed by the convening authority on 1 August
2017, he preferred charges anew on 14 August 2017; an additional charge was pre-
ferred on 28 September 2017, and a second additional charge was preferred on 6 No-
vember 2017.
5
United States v. Proctor, No. ACM S32554
violent relationship was affecting the good order and discipline in the unit.”
Among the considerations in reissuing the orders was that Lt Col MS became
aware of a reason SSgt CM gave to co-workers for continuing to violate recip-
rocal orders he gave to SSgt CM to refrain from all communication and contact
with Appellant. SSgt CM told others she felt that she had no choice but to vio-
late Lt Col MS’s orders: “I have to stay with [Appellant]. I have to violate the
orders, because my life is more important.” Lt Col MS believed that continuing
the reciprocal orders would mitigate the violence in their relationship.
Appellant acknowledged receipt and understanding of each order.
2. Law
We review de novo the lawfulness of a military order. United States v. New,
55 M.J. 95, 106 (C.A.A.F. 2001) (citation omitted). The critical “attributes of a
lawful order include: (1) issuance by competent authority—a person authorized
by applicable law to give such an order; (2) communication of words that ex-
press a specific mandate to do or not do a specific act; and (3) relationship of
the mandate to a military duty.” United States v. Deisher, 61 M.J. 313, 317
(C.A.A.F. 2005) (citations omitted).
Orders are presumed to be lawful, and an appellant bears the burden of
demonstrating otherwise. New, 55 M.J. at 106 (citation omitted); United States
v. Hughley, 46 M.J. 152, 154 (C.A.A.F. 1997) (citations omitted). Thus, “a sub-
ordinate disobeys an order at his own peril,” though they may challenge the
lawfulness of the order when it is given or in later proceedings. United States
v. Kisala, 64 M.J. 50, 52 (C.A.A.F. 2006) (footnotes omitted). Our evaluation of
the lawfulness of an order includes consideration of the criteria from the Man-
ual for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 14.c.(2)(a)(iv),
which states as follows:
Relationship to military duty. The order must relate to military
duty, which includes all activities reasonably necessary to ac-
complish a military mission, or safeguard or promote the morale,
discipline, and usefulness of members of a command and directly
connected with the maintenance of good order in the service. The
order may not, without such a valid military purpose, interfere
with private rights or personal affairs. However, the dictates of
a person’s conscience, religion, or personal philosophy cannot
justify or excuse the disobedience of an otherwise lawful order.
Disobedience of an order which has for its sole object the attain-
ment of some private end, or which is given for the sole purpose
of increasing the penalty for an offense which it is expected the
accused may commit, is not punishable under this article.
6
United States v. Proctor, No. ACM S32554
To be presumed lawful, an order must also be clear, specific, and narrowly
drawn. United States v. Moore, 58 M.J. 466, 468 (C.A.A.F. 2003) (citing United
States v. Womack, 29 M.J. 88, 90 (C.M.A. 1989)).
3. Analysis
At the outset, we reject Appellant’s assertion at trial that Lt Col MS was
without authority to issue the six no-contact orders Appellant was convicted of
violating without first obtaining Appellant’s and SSgt CM’s consent. 9 We find
no authority for this assertion and Appellant cites none. So long as a com-
mander relies on a “valid military purpose” in issuing an unambiguous no-con-
tact order that is narrowly drawn, any consequential “interfere[nce] with pri-
vate rights or personal affairs” is nonetheless lawful without more. MCM, pt.
IV, ¶ 14.c.(2)(a)(iv); see also Moore, 58 M.J. at 467–68.
On appeal, Appellant does not contest whether the six orders were issued
by a competent authority or if they were sufficiently clear, specific, or narrowly
drawn, see Moore, 58 M.J. at 468 (citing Womack, 29 M.J. at 90). Rather, Ap-
pellant claims the orders served no valid military purpose because Lt Col MS’s
justification for issuing the orders was inadequate. To this end, Appellant gives
three bases for challenging lawfulness: (1) the orders appear to have been
based on Lt Col MS’s dislike for the relationship between Appellant and SSgt
CM, and a paternalistic belief that he knew what was best for SSgt CM; (2)
“assuming arguendo that the altercation in February was a sufficient military
purpose to justify the initial no-contact order, that justification dissipated
quickly. Lt Col MS could point to no other acts of violence between Appellant
and SSgt CM that occurred after February 2017;” and (3) the only purpose of
the orders was to enhance Appellant’s punitive exposure. We consider each
contention in turn including an examination of “the conduct at issue.” United
States v. Padgett, 48 M.J. 273, 278 (C.A.A.F. 1998) (citing Womack, 29 M.J. at
91); see generally Moore, 58 M.J. at 468 (focusing on the “specific conduct at
issue in the context of the purposes and language of the order”).
As to Appellant’s first contention, Lt Col MS’s orders directed Appellant
not to contact, communicate, or interact in any way with SSgt CM. As found
by the military judge, each order “was thought out and thoughtful as to pur-
pose and its parameters.” The military judge also found that Lt Col MS sought
to ensure that Appellant did not tamper with or improperly influence SSgt CM,
and thus the orders were “connected or related to military duty.” We find the
9The military judge asked defense counsel if it was “the [D]efense’s position that the
commander was required to ask [Appellant] and/or [SSgt CM] whether or not they
wanted a no-contact order?” Defense counsel replied it was “[i]f he’s going to interfere
with their personal rights.”
7
United States v. Proctor, No. ACM S32554
military judge’s factfinding was not clearly erroneous. Thus, we decline to ac-
cept Appellant’s contrary assertions that Lt Col MS’s purpose in issuing the
orders was his dislike of Appellant’s relationship with SSgt CM or Lt Col MS
being unduly protective of what he thought was in SSgt CM’s best interests.
Lt Col MS was clear that it was not the relationship he disapproved of; rather,
“[w]hat [he] disapprove[d] of [wa]s the violence in their relationship” and he
“never interfered with their relationship . . . until [he] . . . was made aware of
violence.”
The evidence of record demonstrates Lt Col MS genuinely sought to prevent
harm to SSgt CM and issued the series of orders to protect her safety, 10 see
Padgett, 48 M.J. at 278 (upholding order intended to protect individuals from
servicemember), as well as for the good order and discipline of his unit. He also
sought to safeguard the ongoing investigation of Appellant. See United States
v. Nieves, 44 M.J. 96, 99 (C.A.A.F. 1996) (citation omitted) (declining to find an
order prohibiting discussions with witnesses unlawful, in part because there
was “no evidence that appellant ever requested permission to interview [a wit-
ness] or that such permission was denied”). Lt Col MS stated that he had a
concern about Appellant contacting witnesses to threaten them or to influence
their testimony. This was a valid concern, and was also related to Lt Col MS’s
duty to maintain good order and discipline in his unit.
As to Appellant’s second contention, Lt Col MS believed the no-contact or-
ders reduced the level of violence between Appellant and SSgt CM even as he
suspected Appellant of violating his orders. He also continued the orders, ex-
panding them to apply to other named individuals, out of concern that Appel-
lant would contact SSgt CM and witnesses to threaten them or influence their
testimony. As the investigation of Appellant proceeded, Lt Col MS’s reasons
for issuing the orders did not diminish. Under the circumstances, we conclude
the commander possessed a valid military purpose for issuing the series of no-
contact orders.
Lastly, we reject Appellant’s third contention—that the only purpose of the
orders was to enhance Appellant’s punitive exposure because contacting wit-
nesses to influence an investigation is already prohibited by the UCMJ—as
contrary to the military judge’s findings of fact. We recognize the “ultimate
offense doctrine” prohibits “the escalation in severity of minor offenses ‘by
charging them as violations of orders or the willful disobedience of superiors.’”
United States v. Phillips, 74 M.J. 20, 22 (C.A.A.F. 2015) (quoting United States
v. Hargrove, 51 M.J. 408, 409 (C.A.A.F. 1999)). Our superior court has similarly
10Lt Col MS explained there were “many reasons for the no-contact orders,” “[o]ne of
them to protect [SSgt CM].” One of the commander’s concerns he related to SSgt CM
early on was that he “d[id]n’t want to have a funeral in [his] unit.”
8
United States v. Proctor, No. ACM S32554
interpreted this doctrine to prohibit commanders from ordering a member to
“follow the law” and to then punish the member for both the underlying crim-
inal offense and the failure to follow the order. See Padgett, 48 M.J. at 278.
However, Appellant was not charged with both obstruction of justice and the
violation of a no-contact order. Thus, we find no reason to conclude that Lt Col
MS issued no-contact orders to increase Appellant’s punitive exposure.
B. Self-Defense and Defense of Property
Appellant contends the military judge erred by failing to consider the pos-
sibility that Appellant acted in self-defense and that the evidence raised de-
fense of property when Appellant committed the offense of assault consum-
mated by a battery against SSgt AG. 11 Appellant claims the military judge was
required to instruct on self-defense because there was evidence Appellant’s
contact with SSgt AG was a response to SSgt AG’s use of force against Appel-
lant. Appellant also claims the military judge was required to instruct, sua
sponte, on defense of property because there was evidence the conduct in issue
was a result of Appellant’s attempt to lawfully remove trespassers from his
home.
1. Additional Background
a. Thanksgiving Day
SSgt CM shared an off-base residence with Appellant and his children. In
November of 2016, SSgt CM invited Airmen from her flight to her home for
Thanksgiving dinner. Among the invited guests were SSgt AG, Senior Airman
(SrA) JT, and SrA KJ, who testified at trial about an incident between Appel-
lant and SSgt AG after dinner. Appellant was working a swing shift and was
not at the apartment when guests arrived. When Appellant returned home at
around 2300 hours, he changed his clothes and, according to SSgt AG, told her
guests to “get the hell out of my crib.” Appellant turned off the music and eve-
ryone began to leave. Appellant began cursing the Airmen, calling them
“pu[**]ies,” and claiming “you guys are just waiting to f[**]k my girl,” in refer-
ence to SSgt CM.
SSgt AG testified he saw a “glare come across [Appellant’s] face” the mo-
ment Appellant entered the residence. Appellant aired “frustration” that oth-
ers were in his home, and his voice was loud enough to “mean[ ] business.” As
others were making their way out, SSgt AG stayed back because he was one of
the more senior-ranking Airmen and he wanted to make sure all of the other
guests left first, including one of his troops, SrA JT, who was standing “right
by the doorway.” As SrA JT was “about to leave” by crossing “the door seal or
As charged in Specification 2 of Charge II, Appellant did “unlawfully strangle [SSgt
11
AG] by grabbing his throat with his hand.”
9
United States v. Proctor, No. ACM S32554
the doorway,” Appellant was yelling at SrA JT and “went charging right after
him” with a movement that SSgt AG described “was like a really brisk walk in
[SrA JT’s] direction,” and Appellant’s “hands were up” in the air. SSgt AG
“stepped in between the two of them” and “was able to cut [Appellant] off right
by the doorway.” SSgt AG intervened to prevent a fight as he knew there was
a long history of “bad blood” between Appellant and SrA JT.
SSgt AG further testified that as soon as he was between the two, Appel-
lant’s “right hand immediately went straight toward [SSgt AG’s] throat and
[Appellant’s] left hand went towards [SSgt AG’s] right arm to try and move
[SSgt AG] out of the way.” Appellant’s grip on his throat “started getting
tighter and tighter” as SSgt AG told Appellant to “relax” and “let go.” Appel-
lant’s children were by the door and pleaded with Appellant to stop. SSgt AG
stayed between Appellant and SrA JT, but as Appellant’s grip got tighter it
was harder for him to breathe, and he knew he was “going to pass out” if he
did not push back. He “decided to keep trying to push [Appellant] back into the
household,” and as soon as he did, Appellant’s focus changed from SrA JT to
SSgt CM, and Appellant let go of SSgt AG’s throat. SSgt AG departed after
SrA JT and was the last guest to leave.
SrA JT 12 testified the Thanksgiving dinner party was a “family” setting
that ended the moment Appellant arrived home from his shift. While Appellant
and SSgt CM spoke in private, the guests looked at each other and asked if
anyone knew “[w]hat’s going on?” They wondered if they had offended Appel-
lant and did not know what to do. Eventually, Appellant came out of a room
and told SrA JT to “get the F out of [Appellant’s] house.” SrA JT understood
the demand was addressed to him personally, but all of the flight members
began leaving as SrA JT put on his hat and started making his way to the door.
Appellant followed and SrA JT was “[r]ight outside the doorway” when he saw
SSgt AG and a second guest “kind of holding [Appellant] back, stopping [Ap-
pellant] from coming towards” SrA JT who at that point was “already outside.”
SrA JT observed Appellant flailing his left arm “up and down” but did not ob-
serve Appellant choking SSgt AG.
Lastly, SrA KJ testified. She was among seven or eight Airmen from her
flight whom SSgt CM invited to Thanksgiving dinner. SrA KJ was standing on
a balcony outside the living area when Appellant arrived home. When she came
back inside she noticed the mood of the party had changed for the worse. Ap-
pellant and SrA JT “started arguing with each other” and “the situation got
kind of heated, and everyone started to walk out.” Appellant was “looking di-
rectly at” SrA JT, using profanity, and speaking in an angry tone of voice. SrA
12 SrA JT had separated from the military when he testified.
10
United States v. Proctor, No. ACM S32554
KJ was one of the first to leave. SrA JT “was walking out as well” when Appel-
lant “charged toward” SrA JT with his hands raised. She observed SSgt AG get
between Appellant and SrA JT to try to calm Appellant down and prevent
harm to SrA JT and further escalation of the situation. From her vantage of
about 20 to 30 feet outside the residence she looked back and saw SSgt AG
holding back Appellant and the contact she witnessed lasted a matter of sec-
onds. She did not see Appellant choking SSgt AG, but heard SSgt AG repeating
in disbelief, “I can’t believe [Appellant] choked me. [Appellant] choked me.”
b. Trial
The evidence at trial did not touch on Appellant’s and SSgt CM’s property
rights or, more generally, their respective legal interests in the residence they
shared on Thanksgiving Day in 2016 when Appellant cast out SSgt CM’s
guests. There was no testimony as to any verbal agreement, custom, or practice
about the presence of guests in their home. However, in her trial testimony
about violating their commander’s no-contact orders by remaining in the same
residence four months later, on 22 March 2016, SSgt CM explained “[w]e both
had our names on the lease, [and] it was both of our apartment.” Lt Col MS
testified in findings that he was aware their lease expired on or about June
2017, but his testimony did not address when the lease began, its terms, or
who was bound by the lease contract on Thanksgiving in 2016. 13
After the close of evidence, the military judge held an Article 39(a), UCMJ,
10 U.S.C. § 839(a), session with the parties and listed instructions she thought
were raised by the evidence. The military judge acknowledged “there has been
a great deal of discussion as to self-defense,” but defense of property was not
among the instructions she identified. The military judge asked counsel for
both parties if they had “[a]ny objections right now to those [instructions] as
outlined,” noting counsel would have an opportunity to read her proposed in-
structions and make objections later. Defense counsel replied, “Not at this
time, Your Honor.” Later in the session the military judge asked counsel for
both parties if there were “[a]ny other instructions” they wanted. Defense coun-
sel mentioned only an unrelated instruction that no adverse inference should
be drawn from Appellant’s pretrial confinement status when he was alleged to
have violated one of the orders. After a short discussion, the military judge
asked if there were “[a]ny additional special instructions, Defense Counsel?”
who replied, “Not at this moment, Your Honor, thank you.”
13Although not admitted in findings, pages of a lease contract were included as attach-
ments to Appellate Exhibits III and IV. The lease identified both SSgt CM and Appel-
lant as tenants for the term 25 June 2016 through 25 June 2017.
11
United States v. Proctor, No. ACM S32554
Before instructing the members, counsel for both parties reviewed the mil-
itary judge’s proposed instructions in another Article 39(a), UCMJ, session.
Defense counsel asked for an instruction on “self-defense of others” that im-
pacted a specification for which Appellant would be acquitted, but did not raise
defense of property to the specification at issue. At the end of the session, the
military judge asked, “Anything else, Defense?” and the defense counsel re-
plied, “Nothing additional, Your Honor.” At the end of the session after a brief
discussion about answering a member’s question, the military judge asked if
there was “[a]nything else we need to take up in this [Article] 39(a), [UCMJ,
session],” and defense counsel replied, “No, Your Honor.”
After the military judge instructed the members on the law, and prior to
argument, defense counsel asked for an Article 39(a), UCMJ, session and the
members left the courtroom. During the session, and for the first time on the
record, the Defense requested the military judge instruct on self-defense for
the Thanksgiving incident; however, the Defense did not also request a defense
of property instruction. The military judge denied the request for the self-de-
fense instruction, the members were seated, and counsel for both parties pre-
sented argument.
At the conclusion of argument, the military judge instructed the members
on the procedural rules for their deliberations and voting, and then asked
whether “[c]ounsel object to the instructions given or request additional [in-
struction]?” Defense counsel replied, “No, Your Honor.” The military judge re-
cessed the court for the evening. The next morning, the military judge gave a
copy of her instructions to each member and closed the court for deliberations
and voting on findings.
2. Law
“Whether a panel was properly instructed is a question of law reviewed de
novo.” United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011) (citation omit-
ted). “A military judge must instruct members on any affirmative defense that
is ‘in issue.’” United States v. Schumacher, 70 M.J. 387, 389 (C.A.A.F. 2011)
(quoting Rule for Courts-Martial (R.C.M.) 920(e)(3)). An affirmative defense is
“‘in issue’ when ‘some evidence, without regard to its source or credibility, has
been admitted upon which members might rely if they chose.’” Id. (quoting
United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007)). The Schumacher court
explained “‘some evidence’ entitling an accused to an instruction, has not been
presented until ‘there exists evidence sufficient for a reasonable jury to find in
[the accused’s] favor.’” 70 M.J. at 389 (quoting Mathews v. United States, 485
U.S. 58, 63 (1988)).
12
United States v. Proctor, No. ACM S32554
a. Self-Defense
Self-defense is an affirmative defense to a charge of assault consummated
by a battery, see generally R.C.M. 916(a) and Discussion, and has two elements.
First, the accused must have “[a]pprehended, upon reasonable grounds, that
bodily harm was about to be inflicted wrongfully on” him; and second, the ac-
cused must have believed that the force used was “necessary for protection
against bodily harm” and “that the force used by the accused was less than
force reasonably likely to produce death or grievous bodily harm.” See R.C.M.
916(e)(3); see also United States v. Yanger, 67 M.J. 56, 57 (C.A.A.F. 2008). Be-
cause the defense involves more than one element of proof, the record must
contain some evidence upon which members could reasonably rely to find each
element before the military judge is required to instruct the members on it.
Schumacher, 70 M.J. at 389–90.
The right to self-defense is not available to an accused who “was an aggres-
sor, engaged in mutual combat, or provoked the attack which gave rise to the
apprehension, unless the accused had withdrawn in good faith after the ag-
gression, combat, or provocation and before the offense alleged occurred.”
R.C.M. 916(e)(4). However, an accused who starts an affray is entitled to use
reasonable force in self-defense to defend against an opponent who escalates
the level of the conflict. United States v. Dearing, 63 M.J. 478, 484 n.24
(C.A.A.F. 2006) (citations omitted).
b. Defense of Property
Defense of property is also an affirmative defense to a charge of assault
consummated by a battery, although “it is more accurate to refer to defense of
property as a ‘special defense,’ and that the prosecution continuously bears ‘the
burden of proving beyond a reasonable doubt that the defense did not exist.’” 14
United States v. Davis, 73 M.J. 268, 271 n.3 (C.A.A.F. 2014) (quoting R.C.M.
916(b)(1)). Among the means by which an accused may lawfully defend his
property, an accused has a right to eject a trespasser. Id. at 271–72. However,
the right is circumscribed as an
accused may only use as much force as is reasonably necessary
to remove an individual from his property after requesting that
the individual leave and then allowing a reasonable amount of
time for the individual to leave. A person or invitee who refuses
to leave after being rightfully asked to do so becomes a tres-
passer and may not resist if only reasonable force is employed in
14Although the defense supposes an accused has a legal right to defend the property
at issue, whether real or personal, it is not among the defenses that R.C.M. 701(b)(2)
requires notice to the Government before the beginning of trial.
13
United States v. Proctor, No. ACM S32554
ejecting him. However, a property owner may not purposely pro-
voke a disturbance on his property and then use his ownership
of the property as an excuse for an unnecessary assault in eject-
ing another person. If more force is used than is reasonably nec-
essary to remove a trespasser, this force constitutes assault and
battery.
Id. at 272 (citing United States v. Regalado, 33 C.M.R. 12, 14 (C.M.A. 1963))
(additional citations and internal quotation marks omitted). A military judge
has a duty to sua sponte instruct on the defense of property when “some evi-
dence, without regard to its source or credibility, has been admitted upon
which members might rely if they choose.” Id. (quoting R.C.M. 920(e), Discus-
sion).
c. Waiver
“Whether an appellant has waived an issue is a legal question that this
Court reviews de novo.” United States v. Rich, ___ M.J. ___, No. 19-0425, 2020
CAAF LEXIS 240, at *8 (C.A.A.F. 28 Apr. 2020) (citing United States v. Davis,
79 M.J. 329, 332 (C.A.A.F. 2020)). In United States v. Gutierrez, the Court of
Appeals for the Armed Forces (CAAF) rejected plain error review of a required
instruction under R.C.M. 920(e)(3), observing that its “jurisprudence allows af-
firmative waiver of affirmative defenses.” 64 M.J. 374, 376 n.3 (C.A.A.F. 2007).
The trial judge in Gutierrez stated “there doesn’t appear to be any mistake of
fact instruction with regard to battery,” and then pointedly asked the Defense,
“Are you requesting one?” Id. at 376. The court found waiver in defense coun-
sel’s equally pointed response, “I simply do not want to request one for the
battery.” Id. The Gutierrez court explained, “In making waiver determinations,
we look to the record to see if the statements signify that there was a ‘purpose-
ful decision’ at play.” Id. at 377 (citing United States v. Smith, 50 M.J. 451, 456
(C.A.A.F. 1999)). The court found waiver, reasoning, “[d]efense counsel was
presented with the opportunity to request or decline the mistake of fact in-
struction as to assault consummated by battery. He chose to decline it, and in
doing so he affirmatively waived his right to the instruction.” Id. at 377–78.
In Davis, the CAAF again rejected plain error review of a findings instruc-
tion. 79 M.J. at 332. The Davis court found waiver when an appellant argued
for the first time on appeal that the mens rea of “knowingly” applies to the
consent element of Article 120c.(a)(2), UCMJ, 10 U.S.C. § 920c.(a)(2). Davis, 79
M.J. at 331–32. At trial, before instructing the members, the military judge
identified the instructions he intended to give including the consent element
that the appellant raised as an issue on appeal. Id. at 330. After instructing
the members, the military judge “asked whether the defense had any objections
or requests for additional instructions,” and the defense counsel replied, “No
14
United States v. Proctor, No. ACM S32554
changes, sir.” Id. After marking his written instructions as an appellate ex-
hibit, the military judge again asked if there were any objections, and the de-
fense counsel replied, “No, Your Honor.” Id. The Davis court found, “By ex-
pressly and unequivocally acquiescing to the military judge’s instructions, Ap-
pellant waived all objections to the instructions, including in regards to the
elements of the offense.” Id. at 331 (citations and internal quotation marks
omitted).
In Rich, the CAAF again found waiver of a mistake of fact defense instruc-
tion as the court had found in Gutierrez, explaining “when counsel affirma-
tively decline[s] to object and offer[s] no additional instructions, counsel ex-
pressly and unequivocally acquiesce[s] to the military judge’s instructions, and
his actions thus constitute waiver.” Rich, 2020 CAAF LEXIS 240, at *9 (alter-
ations in original) (internal quotation marks omitted) (citing Davis, 79 M.J. at
332). In Davis, the CAAF observed, “[W]hile we review forfeited issues for plain
error, ‘we cannot review waived issues at all because a valid waiver leaves no
error for us to correct on appeal.’” Davis, 79 M.J. at 331 (quoting United States
v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)). Nonetheless, pursuant to Article
66(c), UCMJ, 10 U.S.C. § 866(c), the Courts of Criminal Appeals have the
unique statutory responsibility to affirm only so much of the sentence that is
correct and “should be approved.” Thus, we retain the authority to address er-
rors raised for the first time on appeal despite waiver at trial. See, e.g., United
States v. Hardy, 77 M.J. 438, 442–43 (C.A.A.F. 2018); United States v. Chin,
75 M.J. 220, 223 (C.A.A.F. 2016) (citation omitted) (addressing this court’s re-
sponsibility to “assess the entire record to determine whether to leave an ac-
cused’s waiver intact, or to correct the error”).
3. Analysis
a. Self-Defense
Although the three witnesses testified somewhat differently, the rapid on-
set of violence at the Thanksgiving party is uncomplicated and the essential
facts are not open to question. Appellant charged toward SrA JT 15 who was a
guest in the home Appellant and his three children shared with SSgt CM. SrA
JT’s presence, and possibly the presence of others, stirred Appellant’s anger,
but there is no evidence of any particular words SrA JT uttered or conduct SrA
JT engaged in that might cause Appellant to apprehend, upon reasonable
15 Appellant was not charged with assaulting SrA JT. “An ‘assault’ is an attempt or
offer with unlawful force or violence to do bodily harm to another, whether or not the
attempt or offer is consummated. It must be done without legal justification or excuse
and without the lawful consent of the person affected.” MCM, pt. IV, ¶ 54.c.(1)(a).
15
United States v. Proctor, No. ACM S32554
grounds, that bodily harm was about to be inflicted wrongfully on Appellant,
as might raise the defense of self-defense. R.C.M. 916(e)(3)(A).
Appellant alludes to SrA KJ’s testimony that Appellant and SrA JT
“started arguing with each other” and “the situation got kind of heated.” How-
ever, Appellant cites no authority, and we are aware of none, that justifies a
resort to violence and entitles an aggressor to a self-defense instruction from
an argument in which the words that were exchanged, by whom, and the back-
ground or context are not evident from the record. Considering SrA KT’s testi-
mony alone or with the testimony of other witnesses, there is no evidence SrA
JT manifested any threat of attack or intent to start a fight. There was no
evidence upon which members might rely to find that either SSgt AG or SrA
JT, and not Appellant, started the affray. See Schumacher, 70 M.J. at 389. It
follows that SSgt AG’s intervention and physical contact with Appellant when
he came to SrA JT’s defense was in every respect a response to an unjustified
attack. 16 Appellant had no right to self-defense when he rushed at SrA JT be-
cause the uncontradicted evidence at trial was that Appellant was the initial,
unprovoked aggressor. R.C.M. 916(e)(4).
As SSgt AG stepped between Appellant and SrA JT, and Appellant then
made contact with SSgt AG’s body, Appellant’s assault consummated in bat-
tery. 17 SSgt AG was legally justified to defend both himself, R.C.M. 916(e)(3),
and SrA JT, R.C.M. 916(e)(5), with force necessary for protection against bodily
harm under the principles of self-defense and defense of another. Only if SSgt
AG used unlawful force, and thereby escalated the level of the conflict, would
Appellant then be justified to use force to defend against the escalation. See
generally Dearing, 63 M.J. at 484 n.24 (citing United States v. Cardwell, 15
M.J. 124, 126 (C.M.A. 1983)). This is so because “[e]ven a person who starts an
affray is entitled to use self-defense when the opposing party escalates the level
of the conflict.” Cardwell, 15 M.J. at 126 (citing United States v. Acosta-Vargas,
32 C.M.R. 388 (C.M.A. 1962); United States v. Straub, 30 C.M.R. 156 (C.M.A.
1961)) (“The theory of self-defense is protection and not aggression, and to keep
the two in rough balance the force to repel should approximate the violence
threatened.”).
16A bystander acts at his own peril when he “goes to the aid of an apparent assault
victim” because he assumes the legal status of the defended person. R.C.M. 916(e)(5),
Discussion. If, unbeknownst to the bystander, the apparent victim was in fact the ag-
gressor, the bystander has no right to self-defense. Id. In the instant case, as discussed,
there is no evidence on which a rational factfinder could conclude SrA JT was an ag-
gressor or a provocateur.
“A ‘battery’ is an assault in which the attempt or offer to do bodily harm is consum-
17
mated by the infliction of that harm.” MCM, pt. IV, ¶ 54.c.(2)(a).
16
United States v. Proctor, No. ACM S32554
Appellant was entitled to a self-defense instruction tailored to include the
principle of escalation of force if there was “some evidence” in the record which
the members could rely upon that placed escalation in issue. United States v.
Stanley, 71 M.J. 60, 63–64 (C.A.A.F. 2012) (failure to instruct on the principle
of escalation of force was not error because the record lacked any evidence that
would trigger a duty to instruct). In the instant case, it was Appellant who
abruptly escalated the level of force in the conflict and intensified the violence
by immediately grabbing SSgt AG’s throat and using Appellant’s own power
and strength to try to force his way around SSgt AG and threaten harm to SrA
JT. While SSgt AG overcame Appellant’s force by holding Appellant back and
stopping Appellant from reaching SrA JT, there is no evidence SSgt AG esca-
lated his use of force beyond that which was necessary to fend off Appellant’s
continued unlawful assault and battery. In particular, Appellant’s strangling
SSgt AG at the same time Appellant continued to manifest unprovoked aggres-
sion toward SrA JT was unnecessary for his own defense. See, e.g., United
States v. Ginn, 4 C.M.R. 45, 50 (C.M.A. 1952) (“Self-defense is a defensive, not
an offensive act; and it cannot exceed the bounds of mere protection of one’s
self.”).
We find the issue of self-defense was not reasonably raised by the evidence,
see Schumacher, 70 M.J. at 389–90, and the military judge did not err in de-
clining to instruct the members on self-defense or give a tailored instruction
that included the principle of escalation of force in self-defense.
b. Defense of Property
Appellant also claims the military judge was required to instruct, sua
sponte, on defense of property as a defense to Appellant strangling SSgt AG.
The law recognizes that “individuals may protect their place of abode against
unlawful intrusion. When one with the right to do so has ordered another from
the premises, the latter has no right to refuse or resist.” Regalado, 33 C.M.R.
at 15 (citing United States v Adams, 18 C.M.R. 187, 194 (C.M.A. 1955) (appel-
lant occupying government tent had right to protect himself from trespasser);
United States v Berry, 20 C.M.R. 354 (C.M.A. 1956)).
We find Appellant affirmatively waived a defense of property instruction.
We reach this conclusion from defense counsel’s discussions with the military
judge in three Article 39(a), UCMJ, sessions held to discuss proposed findings
instructions. Considered together, these sessions included a discussion of ap-
plicable defenses to include self-defense as a complete defense to the specifica-
tion at issue. In each session, defense counsel neither objected nor requested a
defense of property instruction. After the conclusion of the findings arguments,
the military judge again asked if the Defense had any objections or requests
for additional instructions. The Defense replied it had no objections to the in-
structions as given, and did not request any additional instructions.
17
United States v. Proctor, No. ACM S32554
On these facts, Appellant expressly and unequivocally acquiesced to find-
ings instructions that did not include the defense of property instruction Ap-
pellant claims should have been given. See Davis, 79 M.J. at 332 (citing United
States v. Wall, 349 F.3d 18, 24 (1st Cir. 2003) (“[C]ounsel twice confirmed upon
inquiry from the judge that he had ‘no objection and no additional requests
[regarding the instructions].’ Having directly bypassed an offered opportunity
to challenge and perhaps modify the instructions, appellant waived any right
to object to them on appeal.” (alteration in original))). Appellant thus waived
the objection he raises on appeal.
We find no reason to pierce Appellant’s waiver in this case, see Hardy, 77
M.J. at 442–43; see also Chin, 75 M.J. at 223, because the military judge com-
mitted no error. Appellant’s claim supposes he had a right to an instruction
that he could oust SSgt CM’s guests from their shared residence. 18 However,
Appellant points to no evidence at trial upon which members might have relied
to find Appellant had a right he asserts for the first time on appeal. Appellant’s
lease was not admitted in evidence. No evidence suggests Appellant’s property
rights under Colorado law were superior to SSgt CM’s own, that Appellant was
at liberty to force SSgt CM’s guests to leave, or that SSgt CM acceded to the
removal of her guests on Appellant’s terms.
Even if we were to assume Appellant had the requisite property rights and
legal interest to demand SSgt CM’s guests leave their shared residence, the
evidence does not suggest that Appellant gave them reasonably adequate time
to comply and that Appellant used no more force than was reasonably neces-
sary. Instead, the evidence indicates Appellant did what the law disallows: he
“purposely provoke[d] a disturbance on his property and then use[d] his own-
ership of the property as an excuse for an unnecessary assault in ejecting an-
other person.” Davis, 73 M.J. at 272. Defense of property simply was not in
issue given the facts of this case and the military judge did not err in failing to
sua sponte instruct the members that it was.
C. Allegation of Unlawful Command Influence
Appellant renews his claim at trial that over a year before Appellant’s
court-martial, Lt Col MS orchestrated a commander’s call message to discour-
age Appellant’s coworkers from providing character letters or testifying on Ap-
18Appellant’s claim is, to some extent, contrary to the position taken by the civilian
defense counsel who argued in findings that Appellant and SSgt CM “lived together,”
“were on a lease together,” and “they both have rightful legal access to that property.”
(Emphasis added).
18
United States v. Proctor, No. ACM S32554
pellant’s behalf. Appellant requests this court set aside and dismiss the find-
ings and sentence on the basis of apparent UCI in the adjudicative stage of his
court-martial.
1. Additional Background
Lt Col MS released Appellant from pretrial confinement on 1 August 2017
after the convening authority withdrew and dismissed Appellant’s original
charges, and before Lt Col MS preferred charges anew on 14 August 2017. A
week earlier, on 7 August 2017, and just over a year before Appellant’s trial
and sentencing, Lt Col MS held a commander’s call as was his practice every
six months. The topics covered at the commander’s call included military
awards and recognition, civilian achievements, sexual assault, and NCOs be-
having poorly and making bad decisions. 19
Lt Col MS encouraged the squadron to “support” Airmen, no matter what
process or difficulty the Airman may be going through, but not “enable” bad
behavior. He also addressed the impropriety of spreading rumors, stating met-
aphorically, “You guys may know what your friends are telling you, but you
don’t have the big picture,” and that there was “more than one chapter in the
book.” He testified,
My goal was to get NCOs to start acting like NCOs, and other
NCOs who were holding the line, to call the other NCOs out.
They should be embarrassed when their NCOs are acting a cer-
tain way and giving their corps a bad name. Just like we get
embarrassed when officers misbehave.
Lt Col MS told a story from when he was enlisted and a junior Airman
under his supervision asked him to provide a character letter. The Airman was
undergoing nonjudicial punishment proceedings for breaking curfew in a de-
ployed location. At the commander’s call, Lt Col MS explained why he declined,
reasoning that the Airman not only disobeyed the order of the mission com-
mander, but Lt Col MS had looked the Airman in the eye and told him to make
sure he was back on time. Lt Col MS related he was there to support the Air-
man but that he could not write a letter advocating that his commander not
take a stripe over the good order and discipline of the unit. Lt Col MS explained
at the commander’s call about his “commitment to the Air Force” then, noting
his commander at the time would question Lt Col MS’s judgment if Lt Col MS
signed a letter advocating that the commander not take a stripe.
19Lt Col MS addressed the squadron, and afterwards the senior NCOs separately ad-
dressed the NCOs to reinforce the commander’s message and answer questions. Ap-
pellant was not in attendance at the commander’s call or the meeting of NCOs.
19
United States v. Proctor, No. ACM S32554
Lt Col MS’s comments did not mention anyone by name or reference alle-
gations or incidents of misconduct in the unit. Even so, his remarks were
prompted by knowledge of issues involving Appellant and SSgt CM, and other
NCOs in the squadron. Lt Col MS was aware that Appellant’s friend, SSgt JP,
had responded to Appellant’s Facebook post with a message that Lt Col MS
viewed as a continuation of Appellant’s Facebook threat. The catalyst for mak-
ing NCO behavior a topic of the commander’s call was SSgt JP’s reaction to
Appellant’s recent release from pretrial confinement at the same time the orig-
inal charges that Lt Col MS had preferred against Appellant were withdrawn
and dismissed by the convening authority. Lt Col MS testified he knew at the
time of the convening authority’s disposition he would prefer charges anew. 20
Around this time Lt Col MS learned from his NCOs that Appellant and SSgt
CM continued to contact each other in violation of his orders, including during
the time when Appellant was in pretrial confinement. He felt the squadron
took a negative turn when charges were withdrawn and dismissed because the
Airmen were wondering what was going on and had lost faith in the system. 21
Lt Col MS’s remarks were prompted also by matters unrelated to Appellant,
including that SSgt JP had been found in his vehicle outside a club with over
twice the legal limit of alcohol in his blood, an NCO had operated a motorcycle
in a manner that caused injury to a junior Airman who was a passenger, and
several NCOs had recently failed their physical fitness assessments.
After the commander’s call, a junior NCO 22 who was Appellant’s friend
asked to meet with the commander. Lt Col MS was aware that the NCO had
previously given a statement to law enforcement stating he “thought that the
unit and the Air Force were after [Appellant] and [Appellant] wasn’t that bad.”
Lt Col MS met with the NCO who assured the commander he was friends with
Appellant, but understood the commander’s perspective and “everything that’s
20Lt Col MS was concerned about the effect on his unit of SSgt JP “[w]alking around
just talking real loud saying, ‘My homey’s getting released. He’s getting out. We are
going to throw a barbecue,’” with the implication that Appellant was in the clear. Lt Col
MS was concerned also because two individuals around whom SSgt JP revelled in Ap-
pellant’s seeming good fortune were individuals SSgt JP disliked and were witnesses
in the Government’s case. Lt Col MS believed SSgt JP knew they were witnesses be-
cause SSgt JP was friends with Appellant.
21 Lt Col MS testified he knew of an instance of NCOs discussing Appellant’s orders
violations in front of a junior Airman. He explained, “When you are in command . . .
[y]ou can feel your unit start to question and doubt what is going on. Why is leadership
not taking care of things?” In response to the military judge’s questions, he added, “A
unit that had high morale and doing very well was starting to go flat.”
22The junior NCO did not testify at the hearings. However, Lt Col MS testified about
their conversations.
20
United States v. Proctor, No. ACM S32554
going on.” Because the NCO was close friends with Appellant, Lt Col MS rein-
forced his expectation “to support [Appellant] when he needs something. Just
do not enable him.” Lt Col MS testified in general about other exchanges he
had with the junior NCO in which the commander encouraged the NCO to con-
tact Appellant’s defense counsel because the NCO was not following through
on returning calls by Appellant’s defense counsel. Lt Col MS told him, “You call
the defense” because “[t]hat’s part of the process. You call them. They are going
to interview you. All I ever expect anybody to do in this unit is just tell the
truth.” The squadron’s first sergeant testified he was aware the junior NCO
was visiting Appellant when Appellant was in pretrial confinement, and
thanked him for supporting Appellant every time the first sergeant and the
NCO talked.
Both the Defense and trial counsel called Airmen who were present for the
commander’s call to testify on the motion. The Defense called SSgt JP and a
senior airman, both of whom understood the commander’s message to be that
those who support an NCO in trouble need to rethink their careers in the Air
Force. 23 While SSgt JP initially understood that the commander’s message was
to not support Appellant, when he sought clarification from a senior NCO, he
was told that the message was not about avoiding the Defense or withholding
support for Appellant. Ultimately, SSgt JP did not believe the commander’s
message was to stay away from Appellant or avoid speaking with Appellant’s
defense counsel. Two senior NCOs testified they understood the commander’s
message to be to support, and not enable, Airmen in trouble. SSgt AG, who was
later the victim of Appellant’s assault consummated by a battery, also attended
the commander’s call. He understood the message to be: if you support certain
individuals, you need to rethink your position in the Air Force. SSgt AG was
confused by the message and believed Lt Col MS was not clear on what “sup-
port” meant. He believed the overall message was to rethink one’s position in
the Air Force so as not to follow a bad path. SSgt AG did not seek to clarify the
message with anyone in his chain of command. Ultimately, he did not believe
he would be punished for his testimony or that the commander threatened
punishment if he supported troubled NCOs.
23The senior airman understood his commander’s message to be “[i]f you’re supporting
an NCO that’s in trouble, you might want to rethink your career. . . . [I]t might put you
in a negative light . . . or you might be looked at as the problem, also.” He testified he
thought it might rub the commander the wrong way to write a character statement
“because [Lt Col MS] never really made it clear what he meant by that statement, so
he left a lot of room for imagination.” He believed there would not be ramifications to
his testimony on the motion because he intended to separate from active duty.
21
United States v. Proctor, No. ACM S32554
2. Law
“Allegations of unlawful command influence are reviewed de novo.” United
States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013) (citations omitted). Where an
assertion of unlawful command influence is litigated at trial, we review the
military judge’s findings of fact for clear error, but we review de novo the legal
question whether those facts constitute unlawful command influence. United
States v. Ayers, 54 M.J. 85, 95 (C.A.A.F. 2000) (citing United States v. Wallace,
39 M.J. 284, 286 (C.M.A. 1994)). “On appeal, the accused bears the initial bur-
den of raising unlawful command influence.” Salyer, 72 M.J. at 423.
“Two types of unlawful command influence can arise in the military justice
system: actual unlawful command influence and the appearance of unlawful
command influence.” United States v. Boyce, 76 M.J. 242, 247 (C.A.A.F. 2017).
Unlike actual UCI, a meritorious claim of an appearance of UCI does not re-
quire prejudice to an accused. Boyce, 76 M.J. at 248 (footnote omitted). “[W]hen
an appellant asserts there was an appearance of unlawful command influ-
ence[,] [t]he appellant initially must show ‘some evidence’ that unlawful com-
mand influence occurred.” Id. at 249 (quoting United States v. Stoneman, 57
M.J. 35, 41 (C.A.A.F. 2002)) (additional citation omitted). This initial showing
requires an accused to demonstrate:
(a) facts, which if true, constitute unlawful command influence;
and (b) this unlawful command influence placed an intolerable
strain on the public’s perception of the military justice system
because an objective, disinterested observer, fully informed of all
the facts and circumstances, would harbor a significant doubt
about the fairness of the proceeding.
Id. (internal quotation marks and citation omitted). Though the burden of this
threshold showing on an accused is low, the evidence presented must consist
of more than “mere allegation or speculation.” Salyer, 72 M.J. at 423 (citation
omitted).
“Once an appellant presents ‘some evidence’ of unlawful command influ-
ence, the burden then shifts to the government to . . . prov[e] beyond a reason-
able doubt that either the predicate facts proffered by the appellant do not ex-
ist, or the facts as presented do not constitute unlawful command influence.”
Boyce, 76 M.J. at 249 (citing Salyer, 72 M.J. at 423) (additional citation omit-
ted). If the Government fails to rebut the appellant’s factual showing, it may
still prevail if it proves “beyond a reasonable doubt that the unlawful command
influence did not place ‘an intolerable strain’ upon the public’s perception of
the military justice system and that ‘an objective, disinterested observer, fully
informed of all the facts and circumstances, would [not] harbor a significant
22
United States v. Proctor, No. ACM S32554
doubt about the fairness of the proceeding.’” Id. at 249–50 (quoting Salyer, 72
M.J. at 423) (internal quotation marks omitted).
3. Analysis
The military judge found Appellant did not meet his threshold burden to
demonstrate “some evidence” of UCI and denied the motion. Boyce, 76 M.J. at
249. On appeal, Appellant asserts the Defense did present “some evidence” of
at least an appearance of UCI in three respects, specifically: (1) that Lt Col MS
made comments about his “NCO problem” in large part because of Appellant’s
case; (2) that Lt Col MS attempted but failed to distinguish supporting Airmen
from enabling Airmen; and (3) that Lt Col MS told the story about declining to
provide a character letter for an Airman on deployment, because of the duty he
felt to the Air Force and the negative consequences it could have had to his
career. Appellant contends this evidence was a sufficient showing of apparent
adjudicative UCI to shift the burden to the Government, which cannot prove
beyond a reasonable doubt that the appearance did not create an intolerable
strain on the public’s perception of the fairness of the military justice system.
Accordingly, Appellant urges us to set aside and dismiss the findings and sen-
tence.
Although the record is unclear as to the exact words Lt Col MS spoke at the
commander’s call or the message that was conveyed, we find Appellant met his
initial showing of “some evidence” of apparent UCI. See Boyce, 76 M.J. at 249.
Even if we accept the military judge’s factfinding that Lt Col MS did not or-
chestrate a message to discourage members of his squadron from providing
character letters or testifying on Appellant’s behalf as Appellant contends he
did, there is no question Lt Col MS had Appellant in mind when he made his
comments, and members of the squadron who knew Appellant well would rec-
ognize Appellant was among the Airmen who were the focus of his remarks.
The commander’s recitation of the personal story illustrated reasons not to pro-
vide a requested character statement for an Airman facing discipline that was
heavy on repercussions and less so on providing information to assist with dis-
position and discipline of the offender. Lt Col MS knew he was going to reprefer
charges on Appellant when he made his remarks.
Nonetheless, we conclude that the evidence of apparent UCI was rebutted
by the Government’s proof that there was no intolerable strain upon the pub-
lic’s perception of the military justice system beyond a reasonable doubt. The
commander’s call, held over a year before Appellant’s trial, addressed multiple
topics; one of which was NCO misconduct, which the commander spoke about
in general terms without identifying either Appellant, the facts underlying the
investigation of Appellant’s misconduct, or repreferral of charges that would
be forthcoming. While the commander told a personal story about refusing to
write a character letter to an Airman who committed misconduct under his
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United States v. Proctor, No. ACM S32554
supervision, importantly none of the witnesses testified that they understood
his commander’s call message as one discouraging them from writing character
letters for Appellant.
Although charges were preferred one week after the commander’s call, trial
on the merits was not held until more than a year later. No members of the
squadron testified that Lt Col MS would take any action against them for their
participation in the court-martial, and there is no evidence in the record that
any Airman refused to testify or write a character letter in support of Appellant
for sentencing. There is no evidence that a witness once supportive of Appel-
lant later withdrew or changed any assurance of support. We conclude these
facts demonstrate that the Government met its burden to demonstrate beyond
a reasonable doubt that no fully-informed, disinterested, objective observer
would doubt the fairness of Appellant’s court-martial. Boyce, 76 M.J. at 249–
50 (citation omitted).
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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