United States v. Riesbeck

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
John C. RIESBECK, Boatswain’s Mate Second Class
United States Coast Guard, Appellant
No. 17-0208
Crim. App. No. 1374
Argued October 25, 2017—January 23, 2018
Military Judge: Michael E. Tousley (trial); Gary E. Felicetti
(DuBay hearing)
For Appellant: John Smith, Esq. (argued); Lieutenant Phil-
lip A. Jones (on brief).
For Appellee: Lieutenant Commander Tereza Z. Ohley (ar-
gued); Stephen P. McCleary, Esq. (on brief).
Judge RYAN delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges OHLSON and
SPARKS, and Senior Judge ERDMANN, joined.
_______________
Judge RYAN delivered the opinion of the Court.
Following voir dire and challenges, the seven-member
panel that convicted and sentenced Appellant was composed
of five women, four of whom were victim advocates—persons
trained to provide support and counseling to victims of rape
and sexual assault—and two men. The military judge hold-
ing a post-trial hearing on the composition of Appellant’s
panel1 concluded that:
Given the intense external pressures [regarding
sexual assault cases], and lack of any other expla-
nation, the most likely reason [for the selections
made by the various people involved in the pro-
1 After remand from this Court, United States v. Riesbeck, 74
M.J. 176 (C.A.A.F. 2014) (summary disposition), a hearing was
ordered in accordance with United States v. DuBay, 17 C.M.A.
147, 37 C.M.R. 411 (1967). United States v. Riesbeck, Dkt. No.
1374, Order for a DuBay Hr’g (C.G. Ct. Crim. App. Jan. 20, 2015).
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
cess] is conscious or unconscious decisions . . . that
it was very important to have a large number of
women on the court.”
As detailed more fully below, the member selection pro-
cess in this case utilized gender as an important selection
criterion. There is nothing in Article 25, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 825(d)(2) (2012),2 that
permits selecting members to maximize the presence of a
particular gender (or any other non-Article 25, UCMJ, crite-
ria) serving on a court-martial.3 See Article 25, UCMJ; Unit-
ed States v. Smith, 27 M.J. 242, 250 (C.M.A. 1988) (rejecting
intentional selection of women panel members in sex offense
case with a female victim and male defendant); cf. United
States v. McClain, 22 M.J. 124, 131 (C.M.A. 1986).
Moreover, this case is readily distinguishable from both
the dicta in Smith, 27 M.J. at 249 (suggesting that race and
gender may be taken into account to create a panel more
representative of the accused’s race or gender), and United
States v. Lewis, 46 M.J. 338, 342 (C.A.A.F. 1997) (holding
that court stacking is not raised by a statistically anomalous
number of women alone). Any suggestion that the selections
in this case were made to promote inclusiveness, ensure a
representative panel, or for an otherwise benign purpose is
specious. See United States v. Riesbeck, Dkt. No. 1374, 2016
CCA LEXIS 744, at *6–7 (C.G. Ct. Crim. App. Nov. 30,
2 Article 25(d)(2), UCMJ, states when convening a court-
martial, the convening authority “shall detail as members thereof
such members of the armed forces as, in his opinion, are best qual-
ified for the duty by reason of age, education, training, experienc-
es, length of service, and judicial temperament.”
3 This Court granted Appellant’s petition on the following is-
sues:
I. Whether members of Appellant’s court-martial
were properly selected.
II. Whether Appellant was deprived of a fair trial, or the
appearance of a fair trial, where a majority of the panel
members were former victim advocates and the military
judge denied a challenge for cause against one of them.
This Court need not reach Issue II in light of the resolution of
Issue I.
2
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
2016).
Where selection of members on an impermissible basis is
raised by the evidence, the government needs to present af-
firmative evidence of benign intent beyond a reasonable
doubt, United States v. Upshaw, 49 M.J. 111, 113 (C.A.A.F.
1998) (citing Lewis, 46 M.J. at 340−41; Smith, 27 M.J. at
249). If not, the ready inference and legal consequence is
that the improper selection was made to affect the result, a
form of unlawful command influence. Article 37, UCMJ, 10
U.S.C. § 837 (2012); United States v. Hilow, 32 M.J. 439,
441−42 (C.M.A. 1991). In this case, the Government pre-
sented no evidence of benign intent at the DuBay hearing,
and we hold that those involved in the selection process be-
lieved court stacking based on gender would influence the
result of Appellant’s court-martial. Further, the Government
has not established that the error was harmless beyond a
reasonable doubt. United States v. Bartlett, 66 M.J. 426, 430
(C.A.A.F. 2008). The decision of the United States Coast
Guard Court of Criminal Appeals (CGCCA) is reversed.
I. Facts and Procedural History
The underlying facts leading to the charges in this sexual
assault case are not directly relevant to the issues before
us.4 We focus instead on the panel selected and the events
surrounding the selection of members to sit on Appellant’s
court-martial panel.
A. Initial Procedural History
Appellant chose to be tried by a panel including enlisted
members. Ten members were ultimately detailed to sit as
Appellant’s court-martial panel. Seven of these members
were women. Thus, although the court-martial panel for this
case was selected from a roster of officers that was only
twenty percent female and a pool of enlisted personnel that
was only thirteen percent female, the panel selected for Ap-
4 A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of one specifi-
cation of making a false official statement, one specification of
rape by force, and one specification of communicating indecent
language in violation of Articles 107, 120, and 134, UCMJ, 10
U.S.C. §§ 907, 920, 934 (2012).
3
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Opinion of the Court
pellant’s court-martial was seventy percent female. Five of
the women were victim advocates. Following voir dire and
Appellant’s challenges, the panel consisted of seven mem-
bers, five of whom were women. Four of those women were
victim advocates.5 Subsequently, having obtained the con-
vening authority’s member-selection materials, Appellant
argued, based on those materials, that there was no “con-
ceivable, rational or logical reason” for seven of ten members
to be women, five of whom were victim advocates, and
moved to strike the female members as improperly selected
on the basis of gender. The military judge denied the motion
as untimely while blithely asserting the issues could be
worked out on appeal rather than actually investigating the
allegation.6 Appellant was convicted and sentenced to three
months of confinement, a reduction to E-2, and a bad-
conduct discharge.
On his initial appeal to the CGCCA, Appellant asserted,
inter alia, that he was deprived of his right to a fair trial by
an impartial panel as a result of improper member selection.
United States v. Riesbeck, Dkt. No. 1374, 2014 CCA LEXIS
946, at *2 (C.G. Ct. Crim. App. Aug. 5, 2014) (unpublished).
Though he had raised the issue at trial, the CGCCA held
that Appellant waived his objection to improper member se-
lection and affirmed the findings and sentence. Id. at *10–
11, *18.
This Court concluded that the objection to member selec-
5 The military judge denied the challenge for cause against
LCDR KO, another one of the women, who had experience coun-
seling a victim of sexual assault. Appellant exercised his peremp-
tory challenge against her.
6 The fact that this case with these facts is returned to us for a
second time, rather than attended to at trial, at the DuBay hear-
ing, or by the CGCCA, is a stain on the military justice system.
The duty to protect servicemembers against unlawful command
influence is not ours alone: “Military judges must continue to ful-
fill their essential role as the ‘sentinel’ of the military justice sys-
tem in identifying and addressing instances of unlawful command
influence. Moreover, judges on the service Courts of Criminal Ap-
peals must also appropriately address unlawful command influ-
ence whenever they encounter it in specific cases.” United States
v. Boyce, 76 M.J. 242, 253 n.9 (C.A.A.F. 2017) (citations omitted).
4
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
tion was not waived, relying on Rule for Courts-Martial
(R.C.M.) 912(b)(3), which provides an exception to the re-
quirement that a timely motion be made where an objection
is based on an allegation that the convening authority se-
lected members for reasons other than those listed in Article
25, UCMJ. Riesbeck, 74 M.J. at 176; see also R.C.M.
502(a)(1). We also noted that improper member selection can
constitute unlawful command influence, which cannot be
waived. Riesbeck, 74 M.J. at 176; United States v. Baldwin,
54 M.J. 308, 310 n.2 (C.A.A.F. 2001). We vacated the
CGCCA decision, granted the issue: “Was Appellant de-
prived of a fair trial by an impartial panel?,” and remanded
the case for further proceedings. Riesbeck, 74 M.J. at 176.
On remand, the CGCCA ordered a post-trial hearing in
accordance with DuBay, 17 C.M.A. 411, 37 C.M.R. 411, to
receive testimony and evidence regarding the composition of
Appellant’s court-martial panel. United States v. Riesbeck,
Dkt. No. 1374, Order for a DuBay Hr’g (C. G. Ct. Crim. App.
Jan. 20, 2015).
B. Findings of the DuBay Military Judge
The detailed factual background and intricacies behind
the member selection process in this case (among other
things) are set forth in detail in Appendix A (DuBay Hear-
ing: Final Findings of Fact) and discussed at some length in
the CGCCA’s opinion. Riesbeck, 2016 CCA LEXIS 744, at *3,
*8−13. Rather than marching through extraneous details,
we focus on the discrete findings salient to the decisional is-
sues in this case, all of which are supported by the record.
At the time of Appellant’s court-martial, “senior Coast
Guard and Department of Defense leadership faced intense
external pressure to do more about preventing and respond-
ing to sexual assaults.” Coast Guard “policies and initia-
tives” emerged as a result of this external pressure, includ-
ing “a combat-like campaign in the ‘righteous’ cause of
fighting sexual assault.” “Selection of the court members in
this case occurred within this overall environment.”
The process of selecting the members for Appellant’s
court-martial included four different individuals: VADM
Brown, RADM Colvin, RADM Ryan, and ADM Zukunft. The
digests provided to the first three included the Article 25,
5
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Opinion of the Court
UCMJ, criteria along with rosters which listed, among other
information, the full names and gender of each
servicemember eligible to be placed on the panel.7 They were
advised to select individuals using the roster and the Article
25, UCMJ, criteria. Roster information, “such as gender,
that did not explicitly align with Article 25 was, at least,
given co-equal status with Article 25.”
VADM Brown, the Coast Guard Pacific Area & Defense
Forces West (PACAREA) commander, was “aware that the
bulk of pending cases involved sexual assaults and con-
sciously or unconsciously desired to have a significant num-
ber of women on the panel.” VADM Brown chose ten officers,
six of whom were women, for the convening order in this
case. Women made up twenty percent of the roster of eligible
officers used by VADM Brown. No identified selection crite-
ria distinguished the chosen women. His “general practice of
seeking a range of ranks on a court-martial panel should not
have resulted in a court composed of 60% women.” All ten
names selected appeared on the initial convening order.
After Appellant requested enlisted representation, the
then acting convening authority,8 RADM Colvin, selected
ten enlisted members for the panel—four of these members
were women.9 He knew one of the female selectees fairly
well. The most obvious explanation for why he “selected
three additional women is some desire to have a significant
number of women on the panel—perhaps while thinking of
obtaining a good mix.” RADM Colvin’s past practice “had
been to seek a ‘mix of educational backgrounds’ while paying
7 PACAREA used a multi-step process “not apparent from the
Digest.” (Emphasis omitted.) The convening authority selects
members from the roster, in accordance with a digest provided by
the SJA, and rank orders them. The legal staff then contacts se-
lected members to determine availability. If unavailable, the name
is removed from the draft convening order and the next highest
ranked person goes on the draft convening order. The draft order
then goes to the convening authority for final approval.
8 The question of whether RADM Colvin had the authority to
act as the convening authority is not before us.
9 The roster of eligible enlisted used by RADM Colvin was only
thirteen percent female.
6
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Opinion of the Court
particular attention to length of service.” However, no crite-
ria other than gender distinguished the chosen women.
Several of the members selected by RADM Colvin were
subsequently deemed unavailable, and the SJA requested
that RADM Ryan select an additional eight enlisted
members for Appellant’s court-martial panel. Despite
drawing from the same roster as RADM Colvin, which was
thirteen percent female, three of the eight members selected
by RADM Ryan were women. RADM Ryan then
intentionally rank-ordered the three women selected as her
first, second, and fourth choices out of the eight enlisted
members although she “did not know any of the enlisted
members selected.” The “most obvious explanation for this
amendment to the court being 37.5% female is some desire,
either conscious or unconscious, to have a significant
number of women on the panel.”
ADM Zukunft took command of PACAREA and the SJA
presented ADM Zukunft with various amendments to the
convening order which essentially ratified the selections of
RADM Ryan and VADM Brown, after accounting for per-
sonnel deemed unavailable. At the end of this complex selec-
tion process, the enlisted portion of the panel detailed to Ap-
pellant’s court-martial was seventy-five percent female and
the officer portion was sixty-seven percent female.
The digest provided to ADM Zukunft did not contain
gender information, so it is unlikely that ADM Zukunft him-
self was aware of the gender composition of the panel. Nor
did the digest contain a description of the Article 25, UCMJ,
selection criteria. Moreover, ADM Zukunft’s stipulated tes-
timony revealed that he was not aware of the requirements
of Article 25, UCMJ, and believed that member selection
was not a best qualified process, but did look for diversity
when selecting members.
The SJA was “aware of the high percentage of females on
the panel but ha[d] no discussions with any of the [conven-
ing authorities] about it.” While the DuBay military judge
determined that there was no coordinated action between
VADM Brown, RADM Colvin, RADM Ryan, and ADM
Zukunft to maximize the number of women selected, he also
found that it was “no coincidence that every relevant deci-
7
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
sion [made] by [VADM Brown, RADM Colvin, and RADM
Ryan] resulted in an unusually large number of females be-
ing selected [to sit on the panel] and/or being highly ranked
for future selection.”
Based on the foregoing information, the DuBay military
judge concluded that “[g]iven the intense external pressures,
and lack of any other explanation, the most likely reason for
the selections made by [VADM Brown, RADM Colvin, and
RADM Ryan] were conscious or unconscious decisions . . .
that it was very important to have a large number of women
on the court.” At each phase of member selection, the parties
could not identify any other subgroup that was over repre-
sented to the extent of women. The military judge also found
at each step that no selection criteria had been identified
which could explain the selection of so many women, or “dis-
tinguish[]” the members selected on any basis other than
gender.
The DuBay military judge’s ultimate conclusion was that
ADM Zukunft himself did not make any gender-based deci-
sions, but rather implemented previous decisions by others:
“Absent personal knowledge of the listed members, which he
does not appear to have, [he] could not have ‘packed’ the
court with women even if he desired to do so.”
C. The Second Appeal
Following the DuBay hearing, Appellant raised several
assignments of error at the CGCCA. Riesbeck, 2016 CCA
LEXIS 744. Appellant asserted, inter alia, that the conven-
ing authority disregarded the member selection factors pre-
sent in Article 25(d)(2), UCMJ, and selected a panel with a
disproportionate number of women. Id. at *3.
The CGCCA again affirmed the findings and the sen-
tence. Id. at *24. As relevant to the granted issue, the
CGCCA concluded that there was no evidence that the con-
vening authorities or their subordinates were “motivated by
the intent to achieve a particular result as to findings or
sentence.” Id. at *10. In addition, the CGCCA, relying on
Lewis, 46 M.J. 338, held that Appellant failed to raise suffi-
cient evidence of court stacking because “court stacking is
not raised by an anomalous number of women on a single
court-martial panel, in the absence of evidence of a pattern
8
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
or of improper motive or other impropriety.” Id. at *14. In
addition, the CGCCA concluded that detailing members
based on gender fosters “inclusiveness of ‘all segments of the
military community’ ” and is benign. Id. at *14−15 (quoting
United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004)).
II. Discussion
We disagree with the legal conclusions of both the
CGCCA and the DuBay hearing military judge. As a thresh-
old matter, gender is not an Article 25, UCMJ, factor, and
selection on the basis of gender is generally prohibited. Unit-
ed States v. Gooch, 69 M.J. 353, 358 (C.A.A.F. 2011) (citing
Dowty, 60 M.J. at 170–71); Lewis, 46 M.J. at 341; United
States v. Witham, 44 M.J. 664, 666 (N-M. Crim. Ct. App.
1996) (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127
(1994)). To the extent there is an exception to provide for a
good faith effort to ensure a “representative” or “inclusive”
panel, Smith, 27 M.J. at 249, the DuBay military judge
found no such “benign” motive, and it is clear from his find-
ings of fact that it is pure sophistry to pretend that such a
motive exists in this case.
As we stated long ago, even reasonable doubt concerning
the use of improper panel selection criteria will not be toler-
ated in the military justice system. United States v. Greene,
20 C.M.A. 232, 238–39, 43 C.M.R. 72, 78−79 (1970). Based
on the facts as found at the DuBay hearing, Appellant has
raised the issue of improper member selection on the basis of
gender. The Government has failed to prove at all, let alone
beyond a reasonable doubt, that the improper member selec-
tion process was not motivated by gender-based court stack-
ing. Additionally, the Government has not met its burden of
convincing this Court beyond a reasonable doubt that Appel-
lant received a fair trial from an impartial panel, free from
the effects of unlawful command influence. United States v.
Lewis, 63 M.J. 405, 414−15 (C.A.A.F. 2006).
A. Member Selection and Article 25, UCMJ
This Court reviews the selection of court-martial mem-
bers for error de novo. Bartlett, 66 M.J. at 427 (citations
omitted). Based on the military judge’s findings of fact from
the DuBay hearing, which, as the CGCCA noted, Riesbeck,
2016 CCA LEXIS 744, at *24, are supported by the record,
9
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Opinion of the Court
we are convinced that the member selection in this case was
based in no small part on gender, which is error. Dowty, 60
M.J. at 171; Lewis, 46 M.J. at 341.
Courts-martial are not subject to the jury trial require-
ments of the Sixth Amendment, and, therefore, military
members are not afforded a trial in front of a representative
cross section of the military community. McClain, 22 M.J. at
128. Indeed, in the military justice system, the commanding
officer refers the charges to a court-martial that he or she
has convened, by selecting members and detailing them to
it. Articles 22 and 23, UCMJ, 10 U.S.C. §§ 822, 823 (2012);
R.C.M. 501−503. “Under these circumstances, it is incum-
bent upon this Court to scrutinize carefully any deviations
from the protections designed to provide an accused
servicemember with a properly constituted panel.” Upshaw,
49 M.J. at 116 (Effron, J., dissenting). In part, it is for this
reason that that even reasonable doubt concerning the use of
impermissible selection criteria for members cannot be tol-
erated. United States v. Bertie, 50 M.J. 489, 493 (C.A.A.F.
1999) (citing Greene, 20 C.M.A. at 238, 43 C.M.R. at 78).
A military defendant has a right both to “members who
are fair and impartial.” United States v. Kirkland, 53 M.J.
22, 24 (C.A.A.F. 2000) (internal quotation marks omitted)
(quoting United States v. Roland, 50 M.J. 66, 68 (C.A.A.F.
1999)), and the appearance of an impartial panel, United
States v. Ward, 74 M.J. 225, 228−29 (C.A.A.F. 2015). In
large measure, Article 25, UCMJ, seeks to effectuate that
end, McClain, 22 M.J. at 128−29, and represents Congress’s
criteria for panel members sitting on a court-martial. A con-
vening authority has significant discretion when selecting
panel members based on the factors outlined in Article
25(d)(2), UCMJ. United States v. Smith, 37 M.J. 773, 776
(A.C.M.R. 1993) (citing United States v. Crawford, 15 C.M.A.
31, 35 C.M.R. 3 (1964)). However, this discretion “is not un-
fettered, particularly when the convening authority reaches
beyond the statutory criteria in making his selection.” Id.
(emphasis added). That is what happened in this case.
Neither race nor gender is included among Article 25,
UCMJ, factors, and, to be sure, there are minefields of con-
stitutional proportion aplenty lurking to upset selections
based on gender (or race). Cf. J.E.B., 511 U.S. at 130−31
10
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(Equal Protection Clause prohibits the use of peremptory
challenge against jury member based on gender); Batson v.
Kentucky, 476 U.S. 79, 85−86 (1986) (Equal Protection
Clause prohibits the use of peremptory challenge against
jury member based on race); Lewis, 46 M.J. at 341. Because
the military justice system works differently, and members
are selected by the convening authority, we have permitted
a convening authority to depart from the factors present in
Article 25, UCMJ, in one limited circumstance: when seek-
ing in good faith to make the panel more representative of
the accused’s race or gender. Thus, in Crawford, the conven-
ing authority had intentionally selected a black
servicemember to serve as a court member where the ac-
cused was black, reasoning that “[i]f deliberately to include
qualified persons is discrimination, it is discrimination in
favor of, not against, an accused.” 15 C.M.A. at 41, 35 C.M.R.
at 13.
As we noted decades later, if an accused was black and a
“convening authority had intentionally selected black offic-
ers as members of the court-martial panel, Crawford’s hold-
ing would apply.” Smith, 27 M.J. at 249. “Moreover, if appel-
lant were a female whose case has been referred for trial
and the convening authority had appointed female members,
the rationale of Crawford would apply.” Id. It is in this con-
text that we concluded that Article 25, UCMJ, does not pre-
clude a commander from taking gender into account if he or
she “[was] seeking in good faith to assure that the court-
martial panel is representative of the military population.”
Smith, 27 M.J. at 249 (citing Crawford, 15 C.M.A. 40–41, 35
C.M.R. at 12−13).
Against this backdrop, the absurdity of the suggestion
that the panel composition in this case was an appropriate
attempt at “inclusiveness,” or “representativeness” is readily
apparent. First, Appellant is neither a woman nor a victim
advocate. Rather, he is a male, accused of rape. Second, as a
matter of common sense, seventy percent is not statistically
or otherwise “representative,” of a population comprising
less than twenty percent of the total pool of potential panel
members. Third, the findings of the military judge make
clear that the severe discrepancy between the percentage of
available female panel members and the final makeup of
11
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Appellant’s panel was not reflective of a good-faith attempt
to either comply with the dictates of Article 25, UCMJ, or
create a more representative or an inclusive panel. Rather, it
was riddled with intentional efforts to maximize the number
of women on the panel because VADM Brown, RADM Col-
vin, and RADM Ryan thought it was “very important” to
have a “large number of women” on the panel in this sexual
assault case.
We thus reject the CGCCA’s suggestion that the issue of
improper member selection in this case was supported by a
statistical anomaly alone. Riesbeck, 2016 CCA LEXIS 744,
at *14−15. It is true that bare statistical evidence showing
over selection of a particular group, without other support-
ing facts, is generally not sufficient to raise the issue of court
stacking. United States v. White, 48 M.J. 251, 255 (C.A.A.F.
1998). But this case presents facts far in excess of a statisti-
cal anomaly, and the CGCCA erroneously applied Lewis to
find that Appellant failed to raise the issue of improper se-
lection criteria. Riesbeck, 2016 CCA LEXIS 744, at *14−15.
This case is readily distinguishable from Lewis. In Lewis,
we held that the appellant failed to raise the issue of court
stacking where the convening authority selected five men
and four women to appellant’s court-martial panel. 46 M.J.
at 341–42. “[N]o one could explain why so many women were
detailed to appellant’s [court-martial],” Id. at 342, but the
appellant in Lewis was unable to even show that the gov-
ernment intentionally selected women to serve on the pan-
els. Id. In other words, in Lewis, there was no evidence that
an improper selection criteria was used to create the anoma-
lous panel, rather, the evidence was that all efforts were to
comply with Article 25, UCMJ. In stark contrast, the record
in this case is replete with evidence that the inclusion of a
high percentage of women was the result of intentional
choices by the first three convening authorities, and the ap-
parently untutored acquiescence of the fourth.10 It is the ev-
10 We summarily jettison the red herring upon which the
DuBay military judge appeared to rest his final conclusion, that
ADM Zukunft was ignorant of the gender composition of the final
convening order so that he could not engage in court stacking. As
our cases on court stacking make clear, the actual ignorance of the
convening authority does not insulate him or her from the errors
12
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Opinion of the Court
idence that an improper selection criterion was actually
used that raises the court stacking issue.
Here, the DuBay military judge found that at each phase
of panel selection, despite “no coordinated action,” VADM
Brown, RADM Colvin, and RADM Ryan “conscious[ly] or
unconscious[ly]” decided to select a disproportionate number
of women to serve on Appellant’s panel. The DuBay military
judge found that no other discernible group was over repre-
sented to this extent and no other selection criteria were
identified that could explain the selection. This factual de-
termination is not clearly erroneous, and distinguishes the
case at bar from Lewis.
Despite no “coordinated action” between VADM Brown,
RADM Colvin, and RADM Ryan, the findings of the DuBay
military judge make clear that: (1) VADM Brown, RADM
Colvin, and RADM Ryan all acted in an atmosphere of ex-
ternal pressure regarding sexual assault cases; (2) all con-
sidered gender as a factor when selecting members for Ap-
pellant’s court-martial panel; (3) all selected groups which
significantly overrepresented women; (4) that the most like-
ly explanation for their selections were “decisions” that it
was “very important to have a large number of women on
the court” (emphasis added); (5) that no other Article 25,
UCMJ, criteria distinguished the women selected; (6) that at
least two of the individuals with input into the process devi-
ated from their ordinary criteria in making the selections for
this case; (7) that with the exception of one woman and one
convening authority, those who selected women for consid-
or misconduct of his or her subordinates, which are errors affect-
ing the court-martial selection process and court stacking none-
theless. Lewis, 46 M.J. at 341 (“[D]eliberate stacking of the pool of
potential court members by a subordinate for the convening au-
thority is a form of unlawful command influence.” (citing Hilow,
32 M.J. at 440)); see also Upshaw, 49 M.J. at 113 (“Court stacking
may occur if a subordinate stacks the list of nominees presented to
the convening authority.” (citing Hilow, 32 M.J. at 440)). As such,
ADM Zukunft’s ignorance of the number of women present on the
panel does not purge the error from the panel selection process,
particularly where he was neither aware that the recommenda-
tions given to him were not based on Article 25, UCMJ, nor inde-
pendently cognizant of what Article 25, UCMJ, required.
13
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
eration for the panel did not know the women selected.
Moreover, unlike other cases, the DuBay hearing did not in-
clude any findings that any of the individuals involved made
their selections based on Article 25, UCMJ, criteria, but ra-
ther that the final convening authority didn’t even know the
Article 25, UCMJ, criteria.
These findings are not clearly erroneous, and directly
conflict with the notion that women were selected for Appel-
lant’s court-martial panel either inadvertently or to ensure
that Appellant received a representative panel. Crawford, 15
C.M.A. 40–41, 35 C.M.R. at 12−13. In sum, a selection pro-
cess geared to ensure a “large number” of women were
placed on the panel in this case does not fall into the limited
“representativeness” exception to Article 25, UCMJ, created
by Crawford and Smith, constitutes improper member selec-
tion, and was error. We emphasize that our conclusion does
not rest on bare statistical evidence of the overrepresenta-
tion of women on the court-martial panel, cf. White, 48 M.J.
at 255, but rather on the improper purpose behind the
member selection.
B. Court Stacking and Unlawful Command Influence
While the government is absolutely prohibited from as-
signing members to—or excluding members from—a court-
martial panel in order to “achieve a particular result as to
findings or sentence” (court stacking), Lewis, 46 M.J. at 341
(internal quotation marks omitted) (quoting Smith, 27 M.J.
at 250), not all improper member selection constitutes court
stacking. This Court applies a case-specific analysis when
deciding issues of improper member selection. Bartlett, 66
M.J. at 430 (citing Hilow, 32 M.J. at 440−42; McClain, 22
M.J. at 132). But even reasonable doubt concerning the use
of improper panel selection criteria will not be tolerated in
the military justice system. Greene, 20 C.M.A. at 238, 43
C.M.R. at 78. Where improper selection criteria have been
used to select members for a court-martial panel, “[s]uch
doubt must be resolved in favor of the accused.” Id. at 238,
43 C.M.R. at 78 (citation omitted).
Court stacking is “a form of unlawful command influ-
ence,” and has the improper motive of seeking to affect the
findings or sentence by including or excluding classes of in-
14
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
dividuals on bases other than those prescribed by statute.
Upshaw, 49 M.J. at 113 (internal quotation marks omitted)
(quoting Lewis, 46 M.J. at 341). Once the issue of improper
member selection has been raised, as it has been in this
case, the burden shifts to the government to demonstrate
beyond a reasonable doubt that improper selection methods
were not used, or, that the motive behind the use of the se-
lection criteria was benign. Id; Roland, 50 M.J. at 69;
McClain, 22 M.J. at 132; Greene, 20 C.M.A. at 239, 43
C.M.R. at 79. The government can rebut a claim of court
stacking by showing administrative error, Upshaw, 49 M.J.
at 112−13 (court-stacking not raised where government
showed and defense conceded that exclusion of technical
sergeants from the panel was a mistake in the absence of
evidence to the contrary), or by showing that, in fact, the
convening authority included or excluded a certain group
from panel membership in an attempt to comply with Article
25, UCMJ. United States v. Nixon, 33 M.J. 433, 434−35
(C.M.A. 1991) (holding that explicit testimony regarding
compliance with Article 25, UCMJ, criteria and determina-
tion of CCA that the convening authority did comply over-
rode appearance of a stacked panel).
The government cannot always meet that high burden.
McClain, 22 M.J. at 132; Greene, 20 C.M.A. at 239, 43
C.M.R. at 79. Sometimes the facts clearly establish an im-
proper motive based on testimony that the purpose of the
improper selection was to create a panel more disposed to
“adjudge heavier sentences,” McClain, 22 M.J. 130−31, or to
select members with the unique “experience” required to
understand the testimony of the victim, Smith, 27 M.J. at
249−50. Those easy cases are clear instances of court stack-
ing.
Other times, as in this case, there is no outright admis-
sion, but the government has not, and likely cannot, estab-
lish a benign purpose for the improper selection criteria. The
DuBay hearing findings of fact contains not a single expla-
nation, let alone a “benign” explanation, for the intentional
selection of so many women in this sex offense case, other
than that the various convening authorities believed it was
“very important” to place a large number of women on the
panel. The Government has failed to show beyond a reason-
15
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
able doubt that there was a benign explanation to rebut the
allegation of improper member selection.
Contrary to the CGCCA’s view, the absence of direct evi-
dence in the form of testimony of malintent and impure mo-
tive does not mean that there is no evidence that the conven-
ing authorities or their subordinates were motivated by the
intent to “achieve a particular result as to findings or sen-
tence.” Id. at 250 (internal quotation marks omitted) (quot-
ing McClain, 22 M.J. at 132). Rather, as in other instances
of asserted unlawful command influence, where the govern-
ment fails to meet its burden to rebut the allegation, as a
matter of law Appellant has, therefore, established unlawful
command influence—in this case, that the purpose for the
improper selection criteria was the unlawful one of seeking
to affect the findings or sentence. United States v. Gerlich,
45 M.J. 309, 310 (C.A.A.F. 1996); cf. United States v.
Biagase, 50 M.J. 143, 150–52 (C.A.A.F. 1999).
And here that legal consequence and inference is fully
supported by the record. The salient facts paint a clear pic-
ture of court stacking based on gender in an atmosphere of
external pressure to achieve specific results in sexual as-
sault cases. Against that backdrop, purposefully selecting a
panel that is seventy percent female, most of whom are vic-
tim advocates, from a roster of officers that was only twenty
percent female and a pool of enlisted that was only thirteen
percent female, smacks of a panel that was “hand-picked” by
or for the Government. United States v. Hedges, 11 C.M.A.
642, 642, 29 C.M.R. 458, 459 (1960); Cf. Dowty, 60 M.J. at
171 (“[A] desire for representativeness cannot be a subter-
fuge to pack the panel.” (citation omitted)). While we are
loath to subscribe to the notion that women are more in-
clined to reach a finding of guilty in a rape case than men,11
the facts of this case raise the specter that those tasked with
choosing Appellant’s court-martial panel hoped to select
members predisposed to “understand the testimony” of sex-
11 Although there is nothing wrong with placing either women
or victim advocates on panels deciding cases involving sexual as-
sault, when the majority of panel members in a sexual assault
case are both, it gives the panel the distinct appearance of being
“hand-picked” by and for the government.
16
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
ual assault victims, Smith, 27 M.J. at 250, in accordance
with this misguided view.
C. Prejudice
In Bartlett, we established three broad categories of re-
view to guide appellate analysis of prejudice in cases involv-
ing the misapplication of Article 25(d), UCMJ. 66 M.J. at
430. When the error derives from court stacking and unlaw-
ful command influence, as it does in this case, this Court has
placed the burden on the Government to prove that the error
was harmless beyond a reasonable doubt. Id. (citing Hilow,
32 M.J. at 442; McClain, 22 M.J. at 132).
Unlawful command influence is “the mortal enemy of
military justice.” United States v. Thomas, 22 M.J. 388, 393
(C.M.A. 1986). “No person subject to this chapter may at-
tempt to coerce or, by any unauthorized means, influence
the action of a court-martial. . . .” Article 37(a), UCMJ. We
are particularly unforgiving in the context of court member
selection, as where manipulation of the member selection
process is “fostered or perpetuated by military authorities
through ignorance or deceit, it substantially undermines the
public’s confidence in the integrity of the court-martial pro-
ceedings.” Hilow, 32 M.J. at 443 (citations omitted).
In order to prevail on the issue of prejudice, the Govern-
ment must convince this Court, beyond a reasonable doubt,
that Appellant received a fair trial, free from the effects of
unlawful command influence. Lewis, 63 M.J. at 414−15. In
the improper member selection context, any “doubt must be
resolved in favor of the accused.” Greene, 20 C.M.A. at 238,
43 C.M.R. at 78; cf. Hilow, 32 M.J. at 432−43 (finding a lack
of prejudice where appellant ultimately pleaded guilty). In
this case, the Government has not met the burden to show,
beyond a reasonable doubt, that Appellant received a fair
trial from an impartial panel. Lewis, 63 M.J. at 413; Ward,
74 M.J. at 229 (citing Kirkland, 53 M.J. at 25).
The very panel that tried, convicted, and sentenced Ap-
pellant was the same panel “hand-picked” by those charged
with selecting Appellant’s court-martial panel. Cf. Hilow, 32
M.J. at 443. The Government’s case was weak, primarily
based on the testimony of SN S, the putative victim, who
was unable to remember many of the events surrounding
17
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
the crime due to alcohol use and whose testimony was con-
troverted by other witnesses at trial. The Government’s case
was so weak, in fact, that the Article 32 Investigating Officer
recommended the dismissal of the Article 120, UCMJ,
charges against Appellant. In addition, the military judge
failed to conduct even a rudimentary investigation into Ap-
pellant’s claims of improper member selection, completely
abdicating his responsibility to cleanse Appellant’s court-
martial of the unlawful command influence. United States v.
Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998) (“[t]he military
judge is the last sentinel protecting an accused from unlaw-
ful command influence”); United States v. Gore, 60 M.J. 178,
187−88 (C.A.A.F. 2004). And the CCA, rather than correct
the obvious error, did not embrace its proper and frankly
necessary role in the context of member selection and unlaw-
ful command influence, but rather rationalized the error
away as a benign effort to seek inclusiveness.
The Government, set on arguing that there was no error,
hasn’t even claimed to meet its burden to show the error was
harmless. Yet the error in this case is both so obvious and so
egregious that it adversely affected not only Appellant’s
right to a fair trial by an impartial panel, but also the essen-
tial fairness and integrity of the military justice system. Ar-
ticle 25, UCMJ; Article 37, UCMJ; see McClain, 22 M.J. at
132. We thus decline to authorize a rehearing, and order
that the charges and specifications be dismissed with preju-
dice. Article 67(d), UCMJ, 10 U.S.C. § 867(d) (2012); Lewis,
63 M.J. at 416. Due to the patent and intolerable efforts to
manipulate the member selection process, contra every re-
quirement of the law, Article 37, UCMJ; Smith, 27 M.J. at
250−51; McClain, 22 M.J. at 132, the failures of the military
judge, the DuBay military judge, and the CGCCA, to inves-
tigate, recognize, or ameliorate the clear court stacking in
this case, and the actual prejudice to the Appellant of being
tried by a panel cherry-picked for the Government, dismissal
with prejudice is the only remedy that can “eradicate the un-
lawful command influence and ensure the public perception
of fairness in the military justice system.” Lewis, 63 M.J. at
416.
III. Decision
The decision of the United States Coast Guard Court of
18
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
Criminal Appeals is reversed. The charges and specifications
are dismissed with prejudice. The record of trial is returned to
the Judge Advocate General of the Coast Guard.
19
APPENDIX A