United States v. Hutchins

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 200800393
_________________________
UNITED STATES OF AMERICA
Appellee
v.
LAWRENCE G. HUTCHINS III
Sergeant (E-5), U.S. Marine Corps
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain A.H. Henderson, JAGC, USN .
Convening Authority: Commander, U.S. Marine Corps Forces
Central Command, MacDill Air Force Base, FL.
Staff Judge Advocate’s Recommendatio n: Colonel John R.
Woodworth, USMC.
For Appellant: Christopher Oprison, Esq.; Lieutenant Colonel S.
Babu Kaza, USMCR; Lieutenant Doug Ottenwess , JAGC, USN.
For Appellee: Major Cory A. Carver, USMC; Lieutenant James M.
Belforti, JAGC, USN.
_________________________
Decided 29 January 2018
_________________________
Before G LASER -A LLEN , M ARKS , and H UTCHISON , Appellate Military
Judges
_________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
_________________________
MARKS, Senior Judge:
A general court-martial comprised of members with enlisted
representation convicted the appellant, contrary to his pleas, of one
specification each of conspiracy,1 unpremeditated murder, and larceny in
1 The sole specification of conspiracy alleged that the appellant conspired with
the seven junior members of his squad to commit larceny, false official statements,
murder, and obstruction of justice and enumerated 17 overt acts in support of the
conspiracy. The members excepted two of the 17 overt acts:
United States v. Hutchins, No. 200800393
violation of Articles 81, 118, and 121, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 881, 918, and 921 (2005).2 The members sentenced the
appellant to 2,627 days’ confinement3 and a bad-conduct discharge. The
convening authority (CA) approved the sentence as adjudged and, except for
the punitive discharge, ordered the sentence executed.
The appellant raises 13 assignments of error (AOE): (1) the military
judge’s denial of the defense motion to suppress evidence of conduct for which
the appellant was acquitted at his first trial; (2) admission of former
testimony where the declarants were not unavailable and there was no
similar motive for cross-examination; (3) unlawful command influence (UCI)
from the Secretary of the Navy; (4) the military judge’s finding that apparent
UCI stemming from the prosecution’s search of defense counsel’s office in
another case was harmless beyond a reasonable doubt; (5) denial of the
defense motion for recusal; (6) denial of the defense request to abate
proceedings until the appellant’s attorney-client relationship was restored;
(7) denial of the defense motion to dismiss based on the government’s
violation of the appellant’s Article 13, UCMJ, rights; (8) denial of the defense
request for a site visit; (9) admission of an exhibit founded on hearsay; (10)
denial of the defense request for a mistrial after the members heard a
government witness testify that the appellant asserted his right to remain
silent; (11) the impact of the significant accumulation of errors on the
outcome of the case; (12) the appellant’s excessive and disproportionate
sentence to roughly six years’ confinement in light of companion cases; and
(13) the legal and factual insufficiency of the findings.
m. The said Sergeant Hutchins did, on or about 28 April 2006, at
or near Patrol Base Bushido, Iraq, submit a false written report
regarding the facts and circumstances related to the unknown Iraqi
man’s death;
....
o. The said Private First Class Jodka did, on or about 9 May 2006,
at or near Hamdaniyah, Iraq, make a false statement to Special
Agents [J.C.] and [S.L.], Naval Criminal Investigative Service,
regarding the facts and circumstances related to the unknown Iraqi
man’s death;
Charge Sheet; Appellate Exhibit (AE) CXCIII at 3; Record at 2358.
2 The members also acquitted the appellant of a single specification of making a
false official statement.
3 The adjudged confinement amounted to time the appellant had served pursuant
to a sentence awarded at a prior court-martial for the same allegations.
2
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After carefully considering the pleadings, oral arguments, and the record
of trial, we find no error materially prejudicial to the substantial rights of the
appellant and affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
First, a procedural orientation may be helpful. The appellant was
originally convicted in August 2007 for his role in the shooting death of an
unknown Iraqi man in Hamdaniyah, Iraq, the morning of 26 April 2006. This
court set aside the findings and sentence for an improper severance of
attorney-client relationship in April 2010. United States v. Hutchins, 68 M.J.
623, 631 (N-M. Ct. Crim. App. 2010) (Hutchins I). The Court of Appeals for
the Armed Forces (CAAF) reversed that decision and remanded the case to
this court to complete its review under Article 66, UCMJ, in January 2011.
United States v. Hutchins, 69 M.J. 282, 293 (C.A.A.F. 2011) (Hutchins II).
This court completed that review and affirmed the findings and sentence of
the first court-martial in March 2012. United States v. Hutchins, No.
200800393, 2012 CCA LEXIS 93, *32, unpublished op. (N-M. Ct. Crim. App.
20 Mar 2012) (Hutchins III). Finding a violation of the appellant’s Fifth
Amendment rights against self-incrimination, the CAAF reversed our 2012
decision, set aside the findings and sentence of the 2007 court-martial, and
remanded the case with authorization for a rehearing. United States v.
Hutchins, 72 M.J. 294, 301 (C.A.A.F. 2013) (Hutchins IV). The results of that
rehearing are before us here.
As for the events of the night and early morning of 25-26 April 2006, we
revisit our summary from Hutchins III, which the CAAF republished in
Hutchins IV:
The appellant was assigned as squad leader for 1st Squad,
2nd Platoon, Kilo Company, 3rd Battalion, 5th Marines,
assigned to Task Force Chromite, conducting counter-
insurgency operations in the Hamdaniyah area of Iraq in April
2006. In the evening hours of 25 April 2006, the appellant led a
combat patrol to conduct a deliberate ambush aimed at
interdicting insurgent emplacement of improvised explosive
devices (IEDs). The court-martial received testimony from
several members of the squad that indicated the intended
ambush mission morphed into a conspiracy to deliberately
capture and kill a high value individual (HVI), believed to be a
leader of the insurgency. The witnesses gave varying testimony
as to the depth of their understanding of alternative targets,
such as family members of the HVI or another random
military-aged Iraqi male.
3
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Considerable effort and preparation went into the execution
of this conspiracy. Tasks were accomplished by various
Marines and their corpsman, including the theft of a shovel
and AK-47 from an Iraqi dwelling to be used as props to
manufacture a scene where it appeared that an armed
insurgent was digging to emplace an IED. Some squad
members advanced to the ambush site while others captured
an unknown Iraqi man, bound and gagged him, and brought
him to the would-be IED emplacement.
The stage set, the squad informed higher headquarters by
radio that they had come upon an insurgent planting an IED
and received approval to engage. The squad opened fire,
mortally wounding the man. The appellant approached the
victim and fired multiple rifle rounds into the man's face at
point blank range.
The scene was then manipulated to appear consistent with
the insurgent/IED story. The squad removed the bindings from
the victim's hands and feet and positioned the victim’s body
with the shovel and AK-47 rifle they had stolen from local
Iraqis. To simulate that the victim fired on the squad, the
Marines fired the AK-47 rifle into the air and collected the
discharged casings. When questioned about the action, the
appellant, like other members of the squad, made false official
statements, describing the situation as a legitimate ambush
and a “good shoot.” The death was brought to the appellant’s
battalion commander’s attention by a local sheikh and the
ensuing investigation led to the case before us.
Hutchins IV, 72 M.J. at 296 (quoting Hutchins III, 2012 CCA LEXIS 93 at *4-
6).
For ease of understanding the hierarchy within the appellant’s squad, his
squad members and co-conspirators will be identified by the ranks they held
on 26 April 2006. They were Corporal (Cpl) Magincalda, Cpl Thomas, Lance
Corporal (LCpl) Jackson, LCpl Pennington, LCpl Shumate, Private First
Class (PFC) Jodka, and Navy corpsman, Hospitalman Third Class (HM3)
Bacos. Other witnesses will also be identified by ranks they held in 2006.
We will incorporate additional facts as we address the AOEs.
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II. DISCUSSION
A. Admissibility of evidence and issue preclusion
In his first AOE, the appellant avers that the military judge erred in
admitting evidence of conduct of which the appellant had been acquitted at
his first trial. Specifically, the evidence of acquitted misconduct included
“evidence of ‘housebreaking,’ ‘kidnapping,’ the alternate plan to seize a
random Iraqi, and the alleged seizure of a random Iraqi by the snatch team.”4
We review a military judge’s ruling on a motion to suppress evidence for
an abuse of discretion. United States v. Harrell, 75 M.J. 359, 362 (C.A.A.F.
2016). The military judge’s findings of fact are reviewed for clear error;
conclusions of law are reviewed de novo. Id. “If the military judge fails to
place his findings and analysis on the record, less deference will be accorded.”
United States v. Flesher, 73 M.J. 303, 312 (C.A.A.F. 2014).
Intertwined with the appellant’s AOE regarding the admission of
evidence are two related issues—collateral estoppel (also known as issue
preclusion) and the appellant’s purported acquittal of conspiring to kill
anyone other than high value individual and suspected insurgency leader,
S.G.5 We must address these two issues and their relationships to
admissibility of evidence before reviewing the military judge’s ruling. It is
helpful to keep in mind that the case before us is a rehearing.
1. Collateral estoppel / issue preclusion
When, as here, the government retries a criminal case, findings of not
guilty from the first trial establish precedents limiting all future prosecutions
of the same matter. Once acquitted of an offense, an accused need never “‘run
the gantlet’” again with regard to that specific offense. Ashe v. Swenson, 397
U.S. 436, 446 (1970) (quoting Green v. United States, 355 U.S. 184, 190
(1957)). The Double Jeopardy clause of the Fifth Amendment to the
Constitution protects the accused from being “subject, for the same offence, to
be twice put in jeopardy of life or limb[.]” U.S. CONST., amend. V. Courts have
long recognized the civil litigation concept of collateral estoppel. See Hoag v.
New Jersey, 356 U.S. 464, 470 (1958) (“‘[W]here a question of fact essential to
the judgment is actually litigated and determined by a valid and final
judgment, the determination is conclusive between the parties in a
subsequent action on a different cause of action.’”) (quoting RESTATEMENT,
JUDGMENTS, § 68(1) (1942)). In Ashe, the Supreme Court held that criminal
4 Appellant’s Brief of 28 Jun 2016 at 30-31 (citation omitted).
5 S.G. was a suspected Iraqi insurgency leader and an HVI in the Hamdaniyah
area, believed to be responsible for a number of IED attacks on American forces. He
was also the intended target of the conspiracy and killing at issue in this case.
5
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collateral estoppel was embodied in the Fifth Amendment’s guarantee
against double jeopardy. 397 U.S. at 445. After the incorporation of criminal
collateral estoppel into double jeopardy protection in Ashe, courts began to
refer to it as issue preclusion. See Schiro v. Farley, 510 U.S. 222, 232 (1994).
The Ashe Court concluded that when a final and valid verdict resolved an
issue of ultimate fact, the government could not litigate it again in a
subsequent prosecution. Ashe, 397 U.S. at 446. An issue of fact is ultimate
when it is critical to the verdict. “Issue preclusion bars successive litigation of
‘an issue of fact or law’ that ‘is actually litigated and determined by a valid
and final judgment, and . . . is essential to the judgment.’” Bobby v. Bies, 556
U.S. 825, 834 (2009) (citation omitted) (emphasis added).
The issue of ultimate fact in Ashe’s case was whether he was among the
band of robbers who broke into a poker game in a private home and stole
money and a car from the six players around the table. Id. at 437. Ashe had
been arrested in connection with the robbery and charged with robbing one of
the players. Id. at 437-38. There was no question that the poker player had
been robbed; the only issue in dispute was whether Ashe was one of the
robbers. Id. at 438-39. Despite a jury’s acquittal at this first trial, Ashe was
later charged and convicted of robbing a different player at the same game.
Id. at 439-440. On a petition for habeas corpus, the Ashe Court honed in on
the “issue in dispute,” finding:
[T]he record is utterly devoid of any indication that the first
jury could rationally have found that an armed robbery had not
occurred, or that [the victim in the first trial] had not been a
victim of that robbery. The single rationally conceivable issue
in dispute before the jury was whether the petitioner had been
one of the robbers. And the jury by its verdict found that he
had not. The federal rule of law, therefore, would make a
second prosecution for the robbery of [the victim in the second
trial] wholly impermissible.
Id. at 445 (emphasis added). The issue in dispute, Ashe’s presence at the
robbery, was an issue of ultimate fact as it was essential to charges of robbery
at his first and second trials. With reasonable doubt as to this essential
ultimate fact, the government could not proceed with it at a second trial that
also depended on it. Id. at 446. See also Dowling v. United States, 493 U.S.
342, 348 (1990) (rejecting the claim of collateral estoppel because “the prior
acquittal did not determine an ultimate issue in the present case”); see also
id. at 356 (Brennan, J., dissenting) (“Thus, in addition to being protected
against retrial for the ‘same offense,’ the defendant is protected against
prosecution for an offense that requires proof of a fact found in his favor in a
prior proceeding.” (emphasis added)).
6
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The burden is on the accused to proffer that a previous set of not guilty
findings resolved an issue of ultimate fact and move for dismissal of
subsequent charges also dependent on that same issue. The accused must
identify the issue in dispute, demonstrate that the verdict in the previous
trial definitively resolved the proffered issue, and pray that it be foreclosed
from further dispute in court. Dowling, 493 U.S. at 350. Once the accused
proffers an issue of ultimate fact, the court must then test the accused’s
proffer. Ashe, 397 U.S. at 444. The Ashe Court charged trial courts testing for
issue preclusion with delving back into prior findings:
[T]he rule of collateral estoppel in criminal cases is not to be
applied with the hypertechnical and archaic approach of a 19th
century pleading book, but with realism and rationality. Where
a previous judgment of acquittal was based upon a general
verdict, as is usually the case, this approach requires a court to
“examine the record of [the] prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant
matter, and conclude whether a rational jury could have
grounded its verdict on an issue other than that which the
defendant seeks to foreclose from consideration.”
Id. (citations omitted). See also Bravo-Fernandez v. United States, 580 U.S.
__, 137 S. Ct. 352, 359 (2016) (noting that “[t]o identify what a jury in a
previous trial necessarily decided . . . a court ‘must examine the record of a
prior proceeding, taking into account the pleadings, evidence, charge, and
other relevant matter’” (quoting Ashe, 397 U.S. at 444)). Cf Dowling, 493 U.S.
at 352 (finding “any number of possible explanations for the jury’s acquittal
verdict at Dowling’s first trial[,]” the Court concluded that “the petitioner has
failed to satisfy his burden of demonstrating” the proffered issue had been
resolved in his favor). Having established that issue preclusion protects an
issue of ultimate fact that is essential to both prior trial and trial at hand, we
now consider issues of less than ultimate fact—relevant but not essential to
pending charges.
2. Extension of issue preclusion to evidence suppression
When an issue of fact is not essential to both verdicts and thus not
ultimate in both cases, preclusion is not automatic. The government need not
prove the acquitted issue beyond a reasonable doubt to secure a new
conviction, so it can proceed with the new prosecution. But can the
government present evidence of that acquitted issue at a pending trial? With
varying degrees of success, criminal defendants have invoked issue
preclusion to suppress evidence from a prior acquittal in a subsequent trial.
See Dowling, 493 U.S. at 348 (declining to extend Ashe’s bar on relitigation
“to exclude in all circumstances . . . relevant and probative evidence that is
7
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otherwise admissible under the Rules of Evidence simply because it relates to
alleged criminal conduct for which a defendant has been acquitted”); see also
United States v. Hicks, 24 M.J. 3, 8 (C.M.A. 1987) (noting “disagreement
among the courts about the extent of the application of the doctrine of
collateral estoppel to the evidentiary use of prior acts of which an accused has
been acquitted.”)
The appellant urges us to follow case precedent from the Second and Fifth
Circuits and extend issue preclusion beyond issues of ultimate fact to
evidence of prior bad acts subject to acquittal. See United States v.
Mespoulede, 597 F.2d 329, 334 (2d Cir. 1979) (challenging the notion that
collateral estoppel only applies to facts essential to conviction); Wingate v.
Wainwright, 464 F.2d 209, 213 (5th Cir. 1972) (finding no “meaningful
difference in the quality of ‘jeopardy’ to which a defendant is again subjected
when the state attempts to prove his guilt by relitigating a settled fact issue
which depends upon whether the relitigated issue is one of ‘ultimate’ fact or
merely an ‘evidentiary’ fact in the second prosecution”).
In Hicks, our superior court explicitly rejected what it characterized as
the minority approach of allowing collateral estoppel “to determine
admissibility of evidence which resulted in acquittal at a prior trial.” 24 M.J.
at 8.6 Opting for the majority approach, the court declared that, “otherwise
admissible evidence” was still admissible, “even though it was previously
introduced on charges of which an accused has been acquitted.” Id. (citations
omitted). As the court succinctly stated in an opinion nearly thirty years
later, “the admissibility of other acts evidence is governed by the Military
Rules of Evidence . . . , and not by the members’ verdict.” United States v.
Washington, 63 M.J. 418, 422 (C.A.A.F. 2006). See also United States v.
Miller, 46 M.J. 63, 66 (C.A.A.F. 1997) (affirming a military judge’s application
of Military Rule of Evidence 404(b), SUPPLEMENT TO MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.) (MIL. R. EVID.) and the Reynolds test7 in
admitting evidence of prior misconduct for which the appellant was
acquitted).
In Hicks, trial defense counsel (TDC) sought to suppress the testimony of
four women who would describe Sergeant (Sgt) Hicks extorting them. 24 M.J.
at 6-7. Sgt Hicks was charged with demanding sex from a woman in return
for not reporting her boyfriend’s misconduct. Id. at 5. The trial court found
6 Citing E. Imwinkelried, Uncharged Misconduct Evidence §§ 10:03 through 10:07
(1984); Annot., 25 A.L.R. 4th 934 (1983); 2 Weinstein's Evidence, ¶ 404[10] at 404-58
(1982); 22 Wright and Graham, Federal Practice and Procedure: Evidence § 5249 at
535-56 (1978).
7 United States v. Reynolds, 25 M.J. 105, 109 (C.M.A. 1989).
8
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the evidence of uncharged misconduct “highly probative of a certain method
or scheme employed by appellant to use his position of authority ‘to
orchestrate events’ to obtain sexual or monetary favors from vulnerable
females.” Id. at 7 (citation omitted). Hicks argued that collateral estoppel
should prevent two of the women from testifying because he had been
acquitted of their allegations at courts-martial. Id. In rejecting Hicks’
argument to apply collateral estoppel and suppress some of the evidence in
his case, the Court of Military Appeals distinguished his case from Ashe. “In
Ashe v. Swenson, . . . the fact underlying the issue of identity—that is,
whether the accused was present at the robbery—was an ultimate fact and
essential for conviction in both proceedings. On the other hand, the other-acts
evidence here was totally separate from the instant offenses in time and
place; was used for a limited evidentiary point; did not require proof beyond a
reasonable doubt; and, although probative, was unnecessary to support a
conviction of the instant charges.” Id. at 8-9.
3. Admissibility of evidence from an acquittal at court-martial
Instead of issue preclusion, three Military Rules of Evidence govern the
relevance and admissibility of evidence of conduct already litigated in a prior
court-martial. Miller, 46 M.J. at 66; Hicks, 24 M.J. at 8. First, “[e]vidence is
relevant if: (a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in
determining the action.” MIL. R. EVID. 401. “The military judge may exclude
relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the members, undue delay, wasting time, or needlessly presenting
cumulative evidence.” MIL. R. EVID. 403. “Evidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the character.”
MIL. R. EVID. 404(b)(1). But “[t]his evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident” MIL. R. EVID.
404(b)(2).
In United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989), the Court of
Military Appeals articulated a three-part test for the admissibility of
uncharged misconduct, including prior misconduct of which the accused was
acquitted:
1. Does the evidence reasonably support a finding by the
court members that appellant committed prior crimes, wrongs,
or acts?
2. What “fact . . . of consequence” is made “more” or “less
probable” by the existence of this evidence?
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3. Is the “probative value . . . substantially outweighed by
the danger of unfair prejudice”?
Id. at 109 (internal citations omitted, alterations in original).
Although the Military Rules of Evidence and the Reynolds test, not issue
preclusion, govern the admissibility of uncharged misconduct, the fact of an
acquittal is still a factor in the analysis. When an accused has been acquitted
of conduct the government seeks to present as evidence in a subsequent case,
that acquittal is a factor in the test for admissibility. “The fact of the prior
acquittal may diminish the probative value of the evidence, however, and
should be considered by the military judge when determining whether
‘probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the members, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.’” Hicks, 24 M.J. at 9 (quoting MIL. R. EVID. 403). An
accused also has the right to prove that he or she was previously acquitted of
the acts admitted into evidence under MIL. R. EVID. 404(b). United States v.
Cuellar, 27 M.J. 50, 56 (C.M.A. 1988). While issue preclusion is not a sword
at the appellant’s disposal in this case, does he nonetheless deserve the
benefit of his purported acquittal of an issue of ultimate fact at his first court-
martial? Our superior court has not prohibited us from querying whether we
can extrapolate an acquittal from prior findings. To begin to answer whether
that purported acquittal affects the admissibility of related evidence, we must
consider the proffered acquittal.
4. Proffered acquittal of conspiring to kill anyone other than S.G.
As part of his motion in limine to suppress evidence of uncharged
misconduct, the appellant asserted that the findings of his first court-martial
indicated an acquittal of an issue of ultimate fact. Based on specific
instructions to the members and their not guilty findings to housebreaking,
kidnapping, and conspiring to commit them, the appellant asserted that the
members must have concluded that (1) the appellant did not order his
Marines to seize anyone other than suspected insurgency leader and HVI,
S.G.; (2) the appellant believed that the individual seized was S.G.; and (3)
the appellant was not responsible for his squad members going to a house
and seizing an unknown Iraqi man (who was not S.G.).8 TDC exhorted the
military judge to examine the findings and exceptions made by the members
at his first trial to confirm that they resolved this issue in the appellant’s
favor. Citing collateral estoppel, the appellant sought to exclude evidence
that the appellant conspired to kill anyone other than S.G.
8 AE XCVIII at 6-7.
10
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a. Not an issue of ultimate fact in the case before us
Whom the appellant conspired to kill was central to the government’s
theme and theory at both trials but was not an issue of ultimate fact at his
second court-martial. The conspiracy specification did not name the victim
the appellant and his co-conspirators agreed to murder. Whether the man
shot by the IED crater was the same man the appellant intended to kill was
not critical to a finding of guilty for murder. As the military judge instructed
the members, in cases of mistake or carelessness, “the intent to kill or inflict
bodily harm is transferred in the intended victim of [the accused’s] action to
the actual victim.”9 And for the same reasons, the identity of the appellant’s
intended victim was not essential to the other charges referred to his second
court-martial. With no pending charges dependent upon whom the appellant
agreed to kidnap and kill, there is no issue of ultimate fact.
Without the required issue of ultimate fact at the pending court-martial,10
we can find no abuse of discretion in the military judge’s apparent decision
not to explore the findings and record of the first court-martial for the
purported acquittal. The military judge made no written findings of fact or
conclusions of law in response to the appellant’s request that he examine the
first record of trial but said “[t]here is no requirement to speculate on the
rationale on the last panel of members. In fact it’s folly to try to do that.”11
Though there appears to be no requirement to mine a prior record of trial
for acquittal of an issue of less than ultimate fact, our superior court has not
prohibited it. The analysis and conclusion of acquittal exemplified in Ashe is
a preliminary step that may, but need not, result in issue preclusion. Even
with issue preclusion off the table, the existence of an acquittal remains
relevant to admission of evidence under the Military Rules of Evidence and
Reynolds. For that reason, we believe the appellant’s proffered acquittal
deserves our consideration.
b. Findings of the appellant’s first court-martial
The first panel of members returned mixed, and to some extent
inconsistent,12 findings. Those findings are summarized below:
Charge I: Conspiracy - Guilty of one specification of conspiracy to commit
larceny, false official statements, murder, and obstruction of justice; but not
9 Record at 2276.
10 See Ashe, 397 U.S. at 443; Dowling, 493 U.S. at 348, discussed supra.
11 Record at 778.
12 As previously stated, the appellant’s acquittal of premeditated murder and
conviction of conspiracy to commit murder are irreconcilably inconsistent.
11
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guilty of conspiracy to commit housebreaking and kidnapping and excepting
four of 21 overt acts effecting the conspiracy.13
Charge II: False Official Statement - Guilty of one specification of false
official statement for a written statement made on 28 April 2006; but not
guilty of a second false official statement for the 8 May 2006 interview with
the NCIS Special Agents.
Charge III: Premeditated Murder - Not guilty of premeditated murder,
but guilty of the lesser included offense of unpremeditated murder of an
unknown Iraqi man;
Charge IV: Larceny - Guilty of one specification of larceny;
Charges V, VI, and VII - Not guilty of assault consummated by battery,
housebreaking, kidnapping, and obstruction of justice.14
The appellant contends, “[t]he removal of housebreaking and kidnapping
as predicate offenses to the conspiracy charge indicate that the members
found, as ultimate facts, that the conspiracy was only to kill [S.G.], and did
not include any plans for alternate victims.”15
c. Examination of the record of the prior proceeding
Our review of the record of the appellant’s first court-martial aligns
substantially with the appellant’s account and conclusions regarding the
meaning of the appellant’s prior acquittal of housebreaking and kidnapping.
From their opening statements, trial counsel (TC) and TDC at the first
court-martial presented conflicting theories of whom the appellant and his
squad members conspired to kill on 25 and 26 April 2006. The government
previewed their three-pronged conspiracy theory—“plan ‘A’, get [S.G.], plan
‘B’, get a brother, or plan ‘C’, get somebody[.]”16 According to the government,
the evidence would show that the appellant, Cpls Magincalda and Thomas,
13 The four excepted overt acts were: (1) Cpl Magincalda, Cpl Thomas, LCpl
Pennington, and HM3 Bacos walking from S.G.’s house to the home of an unknown
Iraqi and Cpl Magincalda and Cpl Thomas entering the house; (2) Cpl Magincalda
and Cpl Thomas taking an unknown Iraqi man from his house against his will; (3)
the appellant’s false statements to Staff Sergeant O.B. on 26 April 2006 regarding
the facts and circumstances of the unknown Iraqi man’s death; and (4) the
appellant’s false statements to Special Agents J.C. and S.L., Naval Criminal
Investigative Service, on 8 May 2006 regarding the facts and circumstances of the
unknown Iraqi man’s death.
14 First trial record, charge sheet and findings worksheet (AE CXXIV).
15 Appellant’s Brief at 27.
16 First trial record at 1015.
12
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and LCpl Pennington spent an hour and a half deliberating and developing a
plan for four squad members to walk to the home of S.G., seize him, bring
him about a kilometer to a crater formed by an IED, disturb the dirt with a
stolen shovel so it appeared S.G. was trying to plant a new IED, stage a
firefight with a stolen AK-47, and kill S.G. That was Plan A.
Plan “B” is, Hey, if we can’t get [S.G.], let’s get one of his
brothers, grab somebody from his house because we want to
send a message. And as they talk about plan “B”, then they
say, What if we can’t get into the house?
Sergeant Hutchins tells them, Get someone else. Bring
somebody back here tonight. We need to send a message. So
they move from plan “B” to plan “C” to get somebody. Get
somebody.17
In response to the government’s opening statement, the appellant’s TDC
focused the members on command pressure to eliminate S.G., a “high value
target,”18 and challenged the existence of a three-prong conspiracy. TDC
asserted that the appellant believed the man he shot at the IED crater was
S.G.
Five members of the appellant’s squad testified at his first court-martial.
The refrain of a single plan repeated throughout their testimony—“To get
[S.G.], bring him down to the IED hole, and shoot and kill him, sir.”19
According to LCpl Pennington and HM3 Bacos, the only two of the original
planners to testify, they originally discussed storming S.G.’s house and
killing him there, in what would look like a mujahedeen attack. Then they
considered commandeering a car and using that to drive S.G. from his home
to the IED crater. But they discarded these ideas in favor of a four-man
“snatch team” seizing S.G. from his home and bringing him, on foot, to the
IED crater.
Testimony about a substitute for S.G. was not consistent. When TC asked
LCpl Jackson what would happen if the snatch team could not seize S.G., he
responded, “[t]hey would get a relative of his or any other male in the house,
sir.”20 TC did not pose the question to PFC Jodka, but in response to a
question from a member, PFC Jodka specifically refuted any suggestion that
the appellant planned to seize one of S.G.’s family members. PFC Jodka
testified, “The plan was to get [S.G.] personally because he was the insurgent,
17 Id. at 1014.
18 Id. at 1031.
19 Id. at 1127.
20 Id. at 1125.
13
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and that he was the one that we were going to put in this IED hole, that it
wasn’t just anybody, sir.”21 On cross-examination, TDC asked LCpl Shumate
if the plan involved killing anyone other than S.G., and LCpl Shumate
replied, “Not that I can think of, sir.”22
LCpl Pennington and HM3 Bacos testified differently. According to LCpl
Pennington, “[i]f we were compromised at the [S.G.] house and couldn’t go
inside without everyone knowing we were there, we would move on to
another house where we would get another military age male.”23 LCpl
Pennington conceded to TDC that “it would have been a significant departure
. . . to grab somebody else” and “[i]t would have defeated the whole purpose
not to grab [S.G.].”24 HM3 Bacos also testified to Plans B and C:
[W]e were tasked out to go retrieve an AK-47 and shovel from a
nearby house, stash it somewhere, go patrol to [S.G.]’s house.
If not—if we couldn’t get [S.G.] because someone saw us in
the family, we would go try getting someone else, anyone, and
then walk that military-aged male—it was going to be a male—
down to the IED hole with the AK-47 and shovel, disturb the
dirt, make it look like he was digging and make it look like he
is doing a terrorist act.25
HM3 Bacos remembered hearing the appellant say, “someone was going to
die tonight[.]”26
The appellant did not testify on the merits at his first court-martial, but
the statement he gave to Naval Criminal Investigative Service (NCIS) on 19
May 2006 went to the members as Prosecution Exhibit (PE) 1.27 In his
statement, the appellant acknowledged a back-up plan to seize and kill one of
S.G.’s brothers if S.G. were not home. Amidst all the discussion, he
remembered Cpl Thomas singing lyrics from a rap song “Somebody’s gonna
die tonight.” According to the plan, the snatch team would bind S.G.’s hands
with flexible handcuffs, gag him, and walk him to the IED crater. When Cpl
21 Id. at 1203.
22 Id. at 1265.
23 Id. at 1337.
24 Id. at 1379.
25 Id. at 1406.
26 Id. at 1410.
27 The CAAF subsequently held that NCIS obtained this statement from the
appellant in violation of his Fifth Amendment rights against self-incrimination and,
accordingly, set aside his convictions. Hutchins IV, 72 M.J. at 299-300.
14
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Thomas and Cpl Magincalda called the appellant on his personal radio
receiver and told him they had “him,” the appellant thought they were
referring to S.G.28 Not until after the shooting, when he approached the body,
did the appellant realize they had killed another Iraqi man, not S.G. HM3
Bacos’s testimony corroborated a radio exchange between the snatch team
and the appellant as the snatch team approached the IED crater. “I
remember Corporal Thomas saying that Sergeant Hutchins wanted to see the
man, to bring the man to the tree. But Corporal Magincalda disagreed and
said, ‘No, we’re not going to do that, let’s just stick with the plan.’”29 On cross-
examination, TDC confirmed with HM3 Bacos that the appellant wanted to
see the man with them, but Cpl Magincalda objected.30
In his closing argument, TC acknowledged the discrepancies in the
testimony about plans A, B, and C but argued that the appellant planned to
kidnap and kill not S.G., but somebody. “They couldn’t get [S.G.] or one of his
brothers, so they got somebody. They got somebody, because somebody was
going to die tonight.”31 TDC closed by inviting the members’ attention to what
HM3 Bacos overheard on the radio between the appellant and the two
corporals to dispute the government’s assertion that he planned to kidnap
and kill anyone other than S.G. Throughout the trial, the government and
TDC advocated conflicting positions about whom the appellant conspired to
kill by the IED crater on 26 April 2006.
As the appellant was not a member of the snatch team, the government
relied on both principal and co-conspirator liability32 to prosecute him for
many of the offenses charged—larceny, housebreaking, kidnapping, and
assault consummated by battery actually carried out by the snatch team
members. TC ended his closing argument with a preview of the legal concept
for members. The military judge instructed the members on principal liability
of those who aid, abet, command, counsel, or procure an offense, and co-
conspirator liability, when the offense is committed in furtherance of the
conspiracy.
Prompted by evidence presented during the court-martial, the military
judge also instructed the members about a possible mistake of fact defense
with regard to the appellant’s authority to detain S.G., a high value target.
28 First trial record, PE 1 at 7.
29 Id. at 1422.
30 Id. at 1449.
31 Id. at 1726.
32 See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005 ed.), Part IV, ¶¶
77b(2)(b) and 81c(5).
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“If the accused at the time of the offense was under the mistaken belief that
he was authorized to detain [S.G.] at any time, then he cannot be found guilty
of the offense of housebreaking.”33 “Now, the accused is not guilty of the
offense of kidnapping if: First, he mistakenly believed he had the authority to
detain [S.G.] at any time, and; Second, if such belief on his part was
reasonable.”34
In light of these instructions, the evidence, and counsel’s arguments, the
findings of not guilty of housebreaking, kidnapping, and conspiracy to commit
them along with the exception of the overt acts of walking to an unknown
Iraqi man’s house, entering the house, and taking the man from his home
against his will, support the appellant’s proffered acquittal. We are not
persuaded by the government’s argument that the appellant could have
reasonably expected an Iraqi to open his home to a knock in the middle of the
night and voluntarily accompany American troops. But for the squad’s legal
authority to arrest and detain high value targets such as S.G., the plan
required housebreaking and kidnapping.35 The mistake of fact defense
regarding the authority to detain applied only to S.G.; no one else was
identified as a high value target. To borrow language from Ashe, “the record
is utterly devoid of any indication that the first jury could rationally have
found that” housebreaking and kidnapping of an unknown Iraqi man “had
not occurred, or that” the unknown Iraqi man “had not been a victim of”
housebreaking and kidnapping. 397 U.S. at 445.
With regard to the appellant’s liability for committing housebreaking and
kidnapping, “[t]he single rationally conceivable issue in dispute before the
jury was whether” the appellant had conspired to enter the home of S.G. and
seize him or to break into the home of someone else to kidnap someone other
than S.G. Id. “And the jury by its verdict found” that the appellant had not
conspired to break into the home of anyone other than S.G. or kidnap anyone
other than S.G. Id. The members demonstrated they understood both
33 First trial record at 1789.
34 Id.35 The elements of housebreaking are: “(1) That the accused unlawfully entered a
certain building or structure of a certain other person; and (2) That the unlawful
entry was made with the intent to commit a criminal offense therein.” MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2005 ed.), Part IV, ¶ 56.b. The elements of
kidnapping are: (1) That the accused seized, confined, inveigled, decoyed, or carried
away a certain person; (2) That the accused then held such person against that
person’s will; (3) That the accused did so willfully and wrongfully; and (4) That,
under the circumstances, the conduct of the accused was to the prejudice of good
order and discipline in the armed forces or was of a nature to bring discredit upon the
armed forces. Id., Part IV, ¶ 92.b.
16
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theories of liability by convicting the appellant of stealing an AK-47 and
shovel he never touched. Their decision to acquit the appellant of
housebreaking and kidnapping demonstrates that the members believed the
mistake of fact defense applied, and the conspiracy was to get and kill S.G.
Again, we find no abuse of discretion in the military judge’s failure to
conclude that the appellant was acquitted of conspiring to kill anyone but
S.G., but we will include this among the acquitted acts of misconduct as we
proceed with analysis of the ruling on admission of evidence.
5. Military judge’s ruling on motion to suppress evidence
In advance of his second trial, the appellant moved “to exclude evidence
and testimony regarding conduct that was the subject of the members’ ‘not
guilty’ findings” at his first trial.36 Specifically, the appellant sought to
exclude evidence of premeditated murder, housebreaking, kidnapping, and a
false official statement to NCIS agents regarding the placement of a shovel or
AK-47 near the deceased.37 The evidence to be suppressed was presented
categorically and not delineated as physical exhibits, statements, or excerpts
of statements. At the time of the motion, both parties anticipated that the
appellant’s former squad mates might testify to much of this evidence.
Ultimately and unexpectedly, the government relied on transcripts of the
prior court-martial testimony of four of the squad members, and the
appellant objected to numerous excerpts of that prior testimony relating to
acquitted offenses.
In a ruling from the bench, the military judge denied the appellant’s
motion to suppress evidence.
The motion to suppress is denied. There is no requirement
to speculate on the rationale of the last panel of members. In
fact, it’s folly to try to do that. The real risk of confusing them
is if we try to parse the facts as proposed by the defense
counsel. Misconduct can violate more than one article of the
UCMJ and the conduct alleged in Paragraphs (a), (b), and (c) of
the defense motion are not mutually exclusive to the charges of
which the accused was acquitted.38
36 AE XCVIII at 1.
37 Id. at 5-7.
38Record at 778. Paragraphs (a), (b), and (c) referred, respectively, to “Evidence of
‘Premeditation,’” “Evidence of Kidnapping and Housebreaking,” and “Evidence of
False Statements to NCIS About Underlying Facts.” AE XCVIII at 5-7. As previously
stated, the appellant’s AOE focuses, almost exclusively, on the evidence in paragraph
(b), housebreaking and kidnapping. We will confine our analysis to housebreaking
17
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This statement of the military judge issued contemporaneously with his
denial of the appellant’s motion to suppress constitutes the sum total of the
record reflective of the military judge’s reasoning in support of his ruling. The
record includes no explicit findings of fact or conclusions of law or any other
explanation or justification in support of the military judge’s ruling. In the
context of the pleadings and argument during the surrounding Article 39(a),
UCMJ, hearing, we can glean two findings of fact from the military judge’s
ruling and simultaneous comments.
First, the military judge apparently found that the evidence of which the
appellant had been acquitted applied to other charges pending before the
court. Early in the Article 39(a), UCMJ, session, the military judge posed to
civilian defense counsel that conduct “can cut across more than one article of
the UCMJ.”39 And “[w]hy can’t the underlying conduct, if it applies to other
charges, still come in?”40 Neither the TC nor the military judge specified the
pending charges to which the underlying misconduct applied. But in their
response to the motion to suppress, the government “opine[d] that these acts
demonstrate the accused’s preparation, intent, lack of mistake or accident,
and plan to execute the offense for which he is charged and escape culpability
and suspicion for the charged offenses.”41
In his second finding of fact, the military judge concluded that
suppression of evidence of housebreaking, kidnapping, and the detour to the
home of the unknown Iraqi man would leave the members confused. TC, in
their response to the defense motion, asserted that, “[c]ourts should decline
any invitation [to] create an artificial gap in the witness’s narrative that will
leave the fact-finder confused and uninformed.”42 The prospect of confused
members resonated with the military judge, who then challenged the civilian
defense counsel on censoring from witnesses’ testimony how they transported
the Iraqi man from his home to the IED crater and “how he got in—allegedly
got into the IED hole.”43 TC then invoked the MIL. R. EVID. 403 balancing test
and warned that “to simply omit those facts of the housebreaking and the
kidnapping, to simply omit those facts, that is what would confuse the
and kidnapping and the underlying facts necessarily resolved by acquittal of those
two charges.
39 Record at 768.
40 Id.
41 AE XCIX at 10.
42 Id. at 8.
43 Record at 770.
18
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members.”44 From the argument on the record, we can conclude that the
military judge found that excising uncharged misconduct of which the
appellant had been acquitted from testimony would confuse the members,
and admitting it was necessary to prevent that confusion.
We presume the military judge knows the law and correctly applies it,
unless the record in this case suggests otherwise. See United States v.
Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) (holding that “[m]ilitary judges
are presumed to know the law and to follow it absent clear evidence to the
contrary”). However, if the military judge analyzed the evidence of prior
misconduct in accordance with MIL. R. EVID. 401, 403, or 404(b) or the three-
part Reynolds test,45 he did not so articulate on the record. Aside from the
necessity for a coherent narrative, TC did not volunteer and the military
judge did not solicit the probative value of the evidence. The military judge
did not acknowledge how the appellant’s prior acquittal impacted its
probative value, and he was silent as to any potential prejudice.
In his instructions to the members, the military judge provided the
standard MIL. R. EVID. 404(b) instruction regarding acquitted offenses and
added:
I remind you again that the accused was acquitted at a prior
proceeding of the offenses of kidnapping, housebreaking,
assault, obstruction of justice, premeditated murder, and false
official statement on or about 8 May, as well as conspiracy to
commit kidnapping and housebreaking. You may therefore
consider evidence that the accused may have been involved in
plans or acts involving entering the alleged victim’s home,
moving him to another location, involvement in a shooting, and
providing a statement to NCIS on or about 8 May for the
limited purpose of its tendency, if any, to prove a plan or design
of the accused to commit the charged acts.46
Given the absence of any substantive findings or analysis by the military
judge, we will conduct our own Reynolds analysis.
6. Application of the Reynolds test
The appellant moved to suppress evidence of the offenses of which he had
been acquitted: conspiracy to commit housebreaking and kidnapping, false
official statement for the 8 May 2006 interview with NCIS, premeditated
44 Id. at 776.
45 29 M.J. at 109.
46 Record at 2285-86.
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murder, obstruction of justice, assault consummated by battery,
housebreaking, and kidnapping. In addition, we analyze the admissibility of
evidence to conspire to kill anyone other than S.G.
a. Support of prior crimes, wrongs, or acts
Evidence in the form of direct testimony from multiple former squad
mates reasonably supports findings that the appellant instigated, advised,
counseled, encouraged, and conspired to commit the offenses of which he was
acquitted, including, as a contingency, conspiring to kill someone other than
S.G. See Reynolds, 29 M.J. at 109. In particular, through their testimony at
the first court-martial, snatch team members LCpl Pennington and HM3
Bacos recounted the carefully considered and crafted plan to enter a home,
seize S.G. or a substitute, transport him to the IED crater, kill him, and stage
the incident to look like a legitimate firefight. They both testified to the
contingency plan to seize one of S.G.’s relatives or any Iraqi man if they could
not get S.G. LCpl Pennington and HM3 Bacos then provided consistent, step-
by-step accounts of the execution of that plan, including the actual
housebreaking, kidnapping, and assault consummated by battery. The other
junior squad members corroborated the plan to obstruct justice with details of
the carefully staged scene. All of this testimony contradicted the appellant’s
initial accounts of discovering and engaging an insurgent digging a hole in
which to bury an IED and suggests deceit and false official statement. This
first factor inures to the admission of the evidence.
b. Probability of facts of consequence
Evidence that the appellant instigated, advised, encouraged, and
conspired to commit the acquitted offenses and that they were committed in
furtherance of that conspiracy makes it more probable that the death of an
unknown Iraqi man in Hamdaniyah on 26 April 2006 was the result of a
conspiracy the appellant hatched and led. Id. The granularity of detail
evident in the testimony about conspiring to enter the home of S.G. and seize
him—or someone else, to kill S.G., and to cover it up made it more probable
that the larceny and murder were also products of the same deliberate and
comprehensive planning process. Evidence of all the actions taken to carry
out the plan made it more probable that the squad members and the
appellant had committed to the plan’s goal of a killing in an IED crater.
Finally, evidence that the appellant and the snatch team members
considered a contingency such as S.G.’s absence from his home and the
identification of a substitute victim made it more probable that the fatal
shooting was both intentional and wrongful.
20
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c. Does the danger of unfair prejudice substantially outweigh the
probative value?
First, we consider the probative value of evidence of the acquitted
offenses. Id. As the government argued, the primary probative value was
narrative cohesion. A cohesive narrative revealed a well-thought out plan
indicating preparation, intent, and lack of mistake or accident.
As for unfair prejudice that might substantially outweigh probative value,
the appellant submits very little. Relying on suppression by issue preclusion,
TDC did not address the Reynolds factors or Military Rules of Evidence in
their motion. The parties discussed the MIL. R. EVID. 403 balancing test only
with regard to evidence of housebreaking and kidnapping and the confusion
of extracting part of the narrative. To complete our analysis, we consider the
potential prejudice of evidence of acquitted misconduct.
Prejudice from evidence of premeditated murder, obstruction of justice,
and the 8 May 2006 false official statement was minimal. The appellant had
been acquitted of committing those offenses but convicted of conspiring to
commit them. Evidence of the completed offenses was essentially
indistinguishable from evidence of conspiracy to commit them and thus
presented little, if any, danger of unfair prejudice.
As for evidence of housebreaking, kidnapping, and the conspiracy to
commit them, their absence would have likely been conspicuous to members.
Some members may have independently understood the authority to seize
and detain high value targets, but there might not have been an instruction
explaining the legal distinction. Faced with a logical gap in the narrative, the
members may have assumed details similar to, or more aggravating than,
what the evidence revealed. Suppressing the evidence may have done little to
reduce prejudice.
More important, the evidence of housebreaking and kidnapping was
embedded in the larger narrative. The consistent eyewitness testimony of one
co-conspirator after another compounded the evidence of both conspiracy to
commit murder and murder itself. There was little danger of conviction based
on character evidence stemming from the housebreaking and kidnapping that
preceded the murder. Inclusion of evidence explaining how the unknown
Iraqi civilian arrived at the IED crater was therefore not unduly prejudicial.
With regard to the appellant’s agreement to kill anyone other than S.G.,
the appellant fell short of articulating unfair prejudice that might have
outweighed probative value. Evidence of Plans B and C, conspiracy to commit
someone other than S.G., is undeniably probative of a conspiracy to commit
murder and the ultimate murder of an unknown Iraqi man. The appellant’s
21
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acquittal of these two plans does diminish their probative value but likely not
in an appreciable way.
Nevertheless, the potential prejudice loomed large. The counsel
prosecuting the appellant’s second court-martial resurrected and recycled the
conspiracy to kill a random Iraqi as the government’s “theory of
prosecution.”47 Sounding remarkably like his predecessor seven years earlier,
TC in the appellant’s second trial began his opening statement with:
“Sergeant Hutchins had a perfect plan, a perfect plan to commit a murder
and send a message. Sergeant Hutchins was the mastermind of the plan, and
his squad executed.”48 The prosecutor quickly referred to “a plan to drag
someone out of their bed in the middle of the night and kill them.”49 Then he
laid out “Plan A, get [S.G.]. Plan B, get [S.G.’s] brothers . . . Plan C, you get
any Iraqi male . . . you get any Iraqi male because this town is going to get
the message.”50 TC then repeated Plan A, Plan B, Plan C. As he wrapped up
his opening statement, the TC again referred to the appellant’s “perfect plan
to send a message.”51 The three-prong conspiracy theory debunked at the first
trial reappeared as a central theory of the second trial, and the intent to kill
someone and send a message was its theme. Although the charge sheet was
silent as to a victim of the conspiracy, the members might have been forgiven
for assuming the appellant was charged with conspiring to kill a random
Iraqi man.
Unlike in Hicks, where “the other-acts evidence was totally separate from
the instant offenses in time and place; was used for a limited evidentiary
point; did not require proof beyond a reasonable doubt; and, although
probative, was unnecessary to support a conviction of the instant charges[,]”
here, although the other-acts evidence did not require proof beyond a
reasonable doubt and was unnecessary to conviction, it was part and parcel of
the instant offenses and prominently presented as the theme and theory of
the case. 24 M.J. at 9.
The government’s depiction of the appellant as someone who conspired to
kill an innocent Iraqi civilian at random was at least arguably aggravating,
but it did not ultimately amount to unfair prejudice in this case. “[T]he term
‘unfair prejudice’ in the context of [MIL. R. EVID.] 403 ‘speaks to the capacity
of some concededly relevant evidence to lure the factfinder into declaring
47 Appellant’s Brief at 17, 24.
48 Record at 1255.
49 Id.
50 Id. at 1259.
51 Id. at 1265.
22
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guilty on a ground different from proof specific to the offense charged.’”
United States v. Collier, 67 M.J. 347, 354 (C.A.A.F. 2009) (quoting Old Chief
v. United States, 519 U.S. 172 (1997)). In light of the substantial and less
controverted evidence that the appellant conspired to kill S.G., the members
would not have needed to rely on evidence of a conspiracy to kill anyone else
to prove the charge itself. Although Plans B and C were a contingency on
which the snatch team needed to rely, evidence of Plans B and C was a
contingency of proof the government did not need.
Finally, had the appellant exercised his right to prove his acquittal of
conspiracy to murder anyone other than S.G.,52 the diversion necessary for
doing so might have tipped the scales of the MIL. R. EVID. 403 balancing test.
MIL. R. EVID. 403 (providing for the exclusion of evidence “if its probative
value is substantially outweighed by the danger of . . . confusion of the issues,
or misleading the members, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.”) But this prejudice is
purely speculative. The appellant did not attempt to prove his acquittal to the
members of the second court-martial, and thus this potential prejudice never
became an issue.
Despite the potential for unfair prejudice in the admission of evidence of a
conspiracy to kill anyone other than S.G., that prejudice was not before the
military judge at the time he admitted the evidence. The actual prejudice did
not substantially outweigh the evidence’s probative value.
Having progressed through the three factors of the Reynolds test and
finding them all in favor of admission, we can find no abuse of discretion in
the military judge’s decision to admit the evidence of acquitted misconduct,
including evidence of a conspiracy to kill anyone other than S.G. The evidence
offered proof of motive, intent, preparation, plan, and an absence of mistake
or accident with regard to the charges against the appellant, particularly
conspiracy to commit murder and murder. MIL. R. EVID. 404. The probative
value of the evidence was not substantially outweighed by the danger of
unfair prejudice or other unjustified distraction from the court-martial. MIL.
R. EVID. 403.
7. Prejudice
Even if we had found abuse of discretion on the military judge’s part in
admitting evidence of a conspiracy to commit Plans B and C, there was no
actual prejudice to the appellant. “We evaluate prejudice from an erroneous
evidentiary ruling by weighing (1) the strength of the Government’s case, (2)
the strength of the defense case, (3) the materiality of the evidence in
52 See Cuellar, 27 M.J. at 56, discussed supra.
23
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question, and (4) the quality of the evidence in question.” United States v.
Barnett, 63 M.J. 388, 397 (C.A.A.F. 2006) (citations and internal quotation
marks omitted).
Even though the appellant’s second trial defense team did not concede his
plan to kill S.G., the evidence of a conspiracy to kill him was overwhelming.
The appellant’s primary defense was that the account of the night’s events
was fabricated and forced upon his squad during coercive interrogations. The
vivid, granular details the co-conspirators recounted with calm, confident
certainty ring with credibility. Evidence of a conspiracy to kill anyone other
than S.G. was material to the government’s case but of inferior quality to the
evidence of an agreement to kill S.G. Despite the prominence the government
gave the evidence of Plans B and C and the murderous callousness the
government presumably sought to depict in the appellant, the evidence of
Plan A was sufficient to assuage any concerns that members needed to fall
back on evidence of Plans B and C. With those concerns assuaged, there is no
prejudice.
B. Former testimony of co-conspirators
The appellant challenges the military judge’s ruling that certain
government witnesses were unavailable and their prior testimony was
admissible.
“So long as the military judge understood and applied the correct law, and
the factual findings are not clearly erroneous, neither the military judge’s
decision to admit evidence, nor his unavailability ruling, should be
overturned.” United States v. Cabrera-Frattini, 65 M.J. 241, 245 (C.A.A.F.
2007).
An accused’s Sixth Amendment right to confront witnesses against him
normally prevents the government from admitting a witness’s former
testimony—testimonial evidence—without producing the witness for cross-
examination. See Crawford v. Washington, 541 U.S. 36, 51 (2004). But if the
witness is unavailable, and has previously been subject to the accused’s cross-
examination, such testimonial evidence may be admissible. Id. at 59(concluding that “[t]estimonial statements of witnesses absent from trial have
been admitted only where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine”); see also Cabrera-
Frattini, 65 M.J. at 245.
1. Unavailability of witnesses
“The test for unavailability focuses on ‘whether the witness is not present
in court in spite of good-faith efforts by the Government to locate and present
the witness.’” Cabrera-Frattini, 65 M.J. at 245 (quoting United States v.
Cokeley, 22 M.J. 225, 228 (C.M.A. 1986)). We review a military judge’s
24
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determinations of witness unavailability—and the government’s good faith
efforts to produce the witness—for an abuse of discretion. Id.Among the reasons for witness unavailability enumerated in MIL. R.
EVID. 804(a) are “(1) exempt[ion] from testifying about the subject matter of
the declarant’s statement because the military judge rules that a privilege
applies;” and “(2) refus[al] to testify about the subject matter despite the
military judge’s order to do so[.]” A witness may refuse to testify by invoking
his privilege against compulsory self-incrimination guaranteed by the Fifth
Amendment and, where applicable, Article 31, UCMJ. U.S. CONST. amend V.
To overcome a witness’s privilege against self-incrimination and compel his
testimony, the government must confer testimonial immunity, as described in
MIL. R. EVID. 301(d)(1):
The minimum grant of immunity adequate to overcome the
privilege is that which under either R.C.M. 70453 or other
proper authority provides that neither the testimony of the
witness nor any evidence obtained from that testimony may be
used against the witness at any subsequent trial other than in
a prosecution for perjury, false swearing, the making of a false
official statement, or failure to comply with an order to testify
after the military judge has ruled that the privilege may not be
asserted by reason of immunity.
(emphasis added). Testimonial immunity does not protect against prosecution
for perjury, United States v. Swan, 45 M.J. 672, 679 (N-M. Ct. Crim. App.
1996); that protection requires transactional immunity.54 But “[t]he
government is not required to seek transactional immunity to demonstrate a
good faith effort.” United States v. Trank, No. 20130742, 2013 CCA LEXIS
985, at *16 (A. Ct. Crim. App. 2013) (citing Kastigar v. United States, 406
U.S. 441, 453 (1972)).
In Trank, the alleged victim—a civilian—testified under oath at an
Article 32, UCMJ, preliminary hearing about sexual abuse and was subject to
cross-examination. Id. at *5-*6. Later, she indicated through counsel that she
intended to recant her allegation and would invoke her Fifth Amendment
right against self-incrimination rather than testify at court-martial. Id. at *6.
The government obtained a grant of testimonial immunity for the alleged
victim from an Assistant United States Attorney and unsuccessfully sought
53RULE FOR COURTS-MARTIAL (R.C.M.) 704, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.) provides for grants of immunity to witnesses subject to the
UCMJ.
54 See R.C.M. 704(a)(1). “A person may be granted transactional immunity from
trial by court-martial for one or more offenses under the [UCMJ].”
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transactional immunity from the state government, but prosecutors declined
to return to the United States Attorney for a grant of transactional
immunity. Id. at *7. The military judge found the alleged victim to be
unavailable, and the Army Court of Criminal Appeals agreed that a grant of
transactional immunity was not required before finding a witness
unavailable. Id. at *16.
In Swan, a witness testified at an Article 39(a), UCMJ, session that his
statement to NCIS implicating Swan was a fabrication. 45 M.J. at 679. The
government offered the witness testimonial immunity, but not transactional
immunity, and instead pursued perjury charges against him for his Article
39(a), UCMJ, testimony. Id. The military judge questioned the witness about
his refusal to testify, determined that he had invoked his Article 31(b),
UCMJ, rights, and declared him unavailable. Id. at 679-80. This court
affirmed the military judge’s ruling of unavailability, finding that he “made
sufficient inquiries to establish that [the witness] would exercise his privilege
against compelled self-incrimination despite the purported grant of
immunity.” Id. at 680.
In the case before us, the government subpoenaed the appellant’s former
squad mates, all civilians by the time of trial, to testify for the prosecution.
HM3 Bacos, PFC Jodka, LCpl Pennington, and LCpl Shumate took the stand
in Article 39(a), UCMJ, sessions. Despite receiving grants of testimonial
immunity,55 they each invoked their Fifth Amendment privilege against self-
incrimination, cited a fear of prosecution for perjury, and declined to comply
with the military judge’s order to testify. Based on this Article 39(a), UCMJ,
testimony, the military judge found HM3 Bacos, PFC Jodka, and LCpl
Pennington unavailable. LCpl Shumate’s Article 39(a), UCMJ, session
followed the military judge’s verbal ruling that the three preceding witnesses
were unavailable, and he neglected to explicitly declare LCpl Shumate
unavailable. This oversight elicited no objection from the appellant, and the
military judge simply dismissed LCpl Shumate after his Article 39, UCMJ,
testimony and proceeded with the admission of his prior testimony based on
his refusal to testify.
The military judge made no specific findings of fact, but he elicited from
each of the four witnesses testimony that met the MIL. R. EVID. 804(b)(1)
criteria for unavailability—their intent to invoke their privilege against self-
55 AE CXXX, CXXXII-CXXXIV. HM3 Bacos, PFC Jodka, LCpl Pennington, and
LCpl Shumate each received a “Grant of Testimonial Immunity and Order to Testify”
from the CA under authority from the Justice Department. In return for testifying
truthfully, each had “immunity from the use of [his] testimony or other information
given by [him] . . . except a prosecution for perjury, giving a false statement, or
otherwise failing to comply with an order to testify in these matters.”
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incrimination to avoid testifying that they had committed perjury at the first
court-martial and their refusal to testify despite being ordered to do so.
Although the military judge did not elaborate on the good faith efforts of the
government to produce the witnesses, all witnesses were present and took the
stand to confirm the circumstances that made them unavailable. The
government had procured the required grants of testimonial immunity.
Despite the appellant’s argument that good faith required TC’s application
for transactional immunity, our military case law precedent is clear that only
testimonial immunity is necessary. The military judge’s rulings were in
accordance with MIL. R. EVID. 804(b)(1) and Swan, which he cited as
authority, as well as Trank. We find no abuse of discretion with regard to the
unavailability of HM3 Bacos, PFC Jodka, LCpl Pennington, and LCpl
Shumate.
Having found the four witnesses unavailable, the military judge invited
the government to seek admission of their testimony from the prior court-
martial. To determine if admission of that prior testimony were an abuse of
discretion, we next look at the appellant’s opportunity to cross-examine the
witnesses.
2. Opportunity and similar motive for cross-examination
If a witness is unavailable, MIL. R. EVID. 804(b)(1) provides an exception
to the rules against hearsay allowing admission of the unavailable witness’s
former testimony. The exception applies to testimony that “(A) was given by a
witness at a trial, hearing, or lawful deposition, whether given during the
current proceeding or a different one; and (B) is now offered against a party
who had an opportunity and similar motive to develop it by direct, cross-, or
redirect examination.” MIL. R. EVID. 804(b)(1).
The appellant argues he did not have a similar motive to cross-examine
the four unavailable co-conspirators at his first trial.
Whether there was a similar motive to cross-examine a witness at a prior
proceeding is a question of law we review de novo. Trank, 2013 CCA LEXIS
985, at *15. The party seeking to admit prior testimony as evidence must
demonstrate similarity of motive. United States v. Salerno, 505 U.S. 317, 322
(1992) (finding no exception to MIL. R. EVID. 804(b)(1)’s “similar motive”
requirement for admitting prior testimony). The appellant steers us to United
States v. DiNapoli, 8 F.3d 909 (2nd Cir. 1993), for the meaning of similar
motive to develop testimony. In DiNapoli, the Second Circuit composed a test
for what constitutes a similar motive at two proceedings: “whether the party
resisting the offered testimony at a pending proceeding had at a prior
proceeding an interest of substantially similar intensity to prove (or disprove)
the same side of a substantially similar issue.” 8 F.3d at 914-15. The
“relevant though not conclusive” factors for comparing relative intensity of
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United States v. Hutchins, No. 200800393
interest are “[t]he nature of the two proceedings—both what is at stake and
the applicable burden of proof—and, to a lesser extent, the cross-examination
at the prior proceeding—both what was undertaken and what was available
but forgone . . . .” Id. at 915.
The context of this analysis in DiNapoli is revealing. The party resisting
admission of the offered testimony was the government. Id. at 911. The two
proceedings were a grand jury and a trial. Id. A prosecutor declined to cross-
examine a witness at a grand jury “in order not to reveal the identity of then
undisclosed cooperating witnesses or the existence of then undisclosed
wiretapped conversations that refuted [the witness’s] denials . . . .” Id. It is
logical to conclude that the lower stakes and burden of proof at the grand jury
prompted the prosecutor to forego that line of cross-examination. On the
other hand, when the nature of the two proceedings is the same—for
example, testimony on findings at a court-martial—the prospect of conviction
or acquittal is the same, and the government’s burden of proof is the same. A
shift in cross-examination strategy does little to change the intensity of the
accused’s interest in avoiding conviction. In fact, the DiNapoli court noted
that “[w]here both proceedings are trials and the same matter is seriously
disputed at both trials, it will normally be the case that the side opposing the
version of a witness at the first trial had a motive to develop that witness’s
testimony similar to the motive at the second trial.” Id. at 912.
In this case, the military judge found “that the exception [MIL. R. EVID.]
804(b)1 [sic] regarding former testimony would apply, making the former
testimony in this prior trial, not the other cases we’ve heard about, would
become [sic] admissible if so desired by the government to introduce them.” 56
This ruling immediately followed the military judge’s declaration that three
of the appellant’s squad members were unavailable as witnesses. TC did not
file a written motion in limine to admit the prior testimony, nor did they
proffer the appellant’s similar motives to develop the testimony at the first
and second courts-martial on the record. As the appellant points out, the
military judge made no findings of fact or conclusions of law regarding
similarity of motive, from the bench or in writing.
But again, we presume the military judge knows and follows the law
unless there is evidence to the contrary. See Erickson, 65 M.J. at 225 (holding
that “[m]ilitary judges are presumed to know the law and to follow it absent
clear evidence to the contrary”). And here we find no evidence to the contrary,
particularly in light of our de novo review of the similarity of motives. The
government sought to introduce the prior testimony of witnesses to prove the
same charges against the same accused in the same forum—a contested
56 Record at 1528.
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general court-martial. Even the DiNapoli court would agree that the motive
to develop that testimony would normally be the same. 8 F.3d at 912. The
appellant fails to rebut that expectation of similarity.
On the record, TDC argued that the defense team at the first trial was
ineffective. TDC further contended that “different charges pending, different
theories of the government and defense, and different motivations and
strategic decisions made by both counsel” negated the appellant’s prior
confrontation of the witnesses.57 In his brief, the appellant alleged that his
first trial defense counsel team “explicitly conceded nearly all of the charged
offenses.”58 But all of the charges referred to the appellant’s second court-
martial were also referred to his first court-martial. Housebreaking and
kidnapping fell off the charge sheet, and premeditated murder became
unpremeditated murder, but the appellant was still accused of murder and
conspiracy to commit murder. The appellant pleaded not guilty to all charges
on both occasions. TDC offered no evidence that the intensity of the
appellant’s interest in fighting for his life against murder charges differed
from one trial to the next. “A shift in the theory of the case does not defeat
admissibility when the underlying liability remains the same, thereby
guaranteeing cross-examination with the same purpose . . . .” 5-804
Weinstein’s Federal Evidence § 804.04 (2017); see also United States v.
Avants, 367 F.3d 433, 444 (5th Cir. 2004) (finding that, in a case where the
appellant’s “motive was to discredit a witness . . . whose testimony could, if
believed, convict him,” a change in trial strategy did not create dissimilarity
in motive).
Much of the appellant’s strategy for attacking his squad mates’ testimony
rests on their freshly sworn affidavits renouncing their previous statements
to NCIS and earlier testimony as coerced and false. Nevertheless, the
discovery of new evidence useful to cross-examining a witness does not inject
dissimilarity into the comparison of motives. “The ‘similar motive’
requirement is satisfied if counsel had the opportunity to cross-examine the
witness without restriction on the scope of the examination even if counsel
subsequently discovers information which was not available at the [previous]
hearing.” Trank, 2013 CCA LEXIS 985, *13-14 (citation omitted); see also
United States v. Hubbard, 28 M.J. 27, 32 (C.M.A. 1989) (reiterating that
“admissibility of former testimony is not precluded because, after the giving
of that testimony, material information is obtained as to which the defense
had no opportunity to cross-examine the absent witness”). Nothing prevented
the appellant’s first trial defense counsel team from exploring the
57 Id. at 1642.
58 Appellant’s Brief at 46.
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circumstances under which the squad members made their statements to
NCIS then negotiated immunity and favorable pretrial agreements in return
for testifying at other courts-martial, including the appellant’s.
Comparing his two trial defense teams in hyperbolic terms, the appellant
tries to elevate difference in strategy to a difference in motive. The difference
in strategy manifested in the zeal with which the trial defense teams sought
to discredit the squad members’ testimony. But the purported unreliability of
testimonial evidence alone will not prevent its admission, even under MIL. R.
EVID. 804(b)(1). Our superior court has declined to suppress testimonial
evidence based on credibility concerns alone because “factual reliability does
not have to be established as a prerequisite for admitting hearsay evidence
pursuant to a well-recognized hearsay exceptions.” See Hubbard, 28 M.J. at
33.
While we have no findings of fact from the military judge, the appellant
does not dispute that his first defense counsel team had the opportunity to
cross-examine all four witnesses later declared unavailable. The charges the
appellant faced at his first court-martial and his not guilty pleas are not
subject to debate. The appellant has not introduced evidence sufficient to
overcome those undisputed facts. The military judge also cited the correct
rule, MIL. R. EVID. 804(b)(1), in admitting the testimonial evidence, and his
ruling does not run afoul of the appellant’s preferred legal standard in
DiNapoli: “whether the party resisting the offered testimony at a pending
proceeding had at a prior proceeding an interest of substantially similar
intensity to prove (or disprove) the same side of a substantially similar issue.”
8 F.3d at 914-15. Finding interests of substantially similar intensity at both
courts-martial to dispute a substantially similar set of testimony and
disprove a substantially similar set of charges, we find no abuse of discretion
in the military judge’s admission of the four unavailable squad members’
former testimony.
C. UCI
The appellant alleges that public statements made by then-Secretary of
the Navy (SECNAV) Ray Mabus constituted UCI on the appellant’s clemency
proceedings, appellate review, and second court-martial.
We review allegations of UCI de novo. United States v. Salyer, 72 M.J.
415, 423 (C.A.A.F. 2013).
Article 37(a), UCMJ, prohibits unlawful influence on the military justice
process by someone in a position of authority:
No authority convening a general, special, or summary court-
martial, nor any other commanding officer, may censure,
reprimand, or admonish the court or any member, military
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United States v. Hutchins, No. 200800393
judge, or counsel thereof, with respect to the findings or
sentence adjudged by the court, or with respect to any other
exercises of its or his functions in the conduct of the
proceedings. No person subject to this chapter may attempt to
coerce or, by any unauthorized means, influence the action of a
court-martial or any other military tribunal or any member
thereof, in reaching the findings or sentence in any case, or the
action of any convening, approving, or reviewing authority with
respect to his judicial acts.
10 U.S.C. § 837(a) (2012).
Interpreting Article 37, UCMJ, in light of case law explored infra, we can
distill something of a formula for facts constituting UCI: (1) a government
actor (2) takes action which influences or appears to influence (3) a decision-
maker in the court-martial process. The affected decision-maker might be a
potential court-martial member, CA, or military judge. In his analysis of
alleged UCI in this very case, former Chief Judge Baker of the CAAF set out
the following factors in the context of a government actor making a public
statement: the comments’ intended audience, the intended and larger
audience’s perception of the comments, existence of an intent to influence a
proceeding’s outcome, the implicit or explicit threat of repercussions for
dissent, and regardless of any intent, an effect of influencing outcome or
actors. Hutchins IV, 72 M.J. at 313 (Baker, C.J., dissenting). These factors,
while admittedly not binding, are instructive. The potential influence is
unauthorized or unlawful because through “censure, reprimand, or
admonish[ment]”59 or something similar, a government actor manipulates,
interferes with, or improperly strips the actors in the court-martial process of
their independence.
To show prejudice or compromise of the military justice process, a
complaining party must tie these facts constituting UCI to some effect. “In
cases involving [UCI], the key to our analysis is effect—not knowledge or
intent” of the government actor. United States v. Boyce, 76 M.J. 242, 251
(C.A.A.F. 2017). The effect may be actual prejudice to the complainant or the
appearance of it. The prejudice may be unforeseen, accidental collateral
damage, but it nevertheless results from—or in the case of apparent UCI,
appears to result from—governmental interference in the military justice
process. See United States v. Stombaugh, 40 M.J. 208, 211 (C.A.A.F. 1994)
(focusing on “interference with the substantial rights of the accused” in
analyzing allegations of UCI).
59 Art. 37(a), UCMJ.
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1. Actual UCI
“[A]ctual [UCI] has commonly been recognized as occurring when there is
an improper manipulation of the criminal justice process which negatively
affects the fair handling and/or disposition of a case.” Boyce, 76 M.J. at 247
(citations omitted). An appellant has the initial burden of raising UCI by
showing: (1) “facts which, if true, constitute [UCI];” (2) “that the proceedings
were unfair;” and (3) “that UCI was the cause of the unfairness.” United
States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). The evidentiary standard
for raising the issue of UCI is “some evidence.” United States v. Stoneman, 57
M.J. 35, 41 (C.A.A.F. 2002); United States v. Ayala, 43 M.J. 296, 300
(C.A.A.F. 1995). The appellant’s burden of proof is low, but it must be more
than mere allegations or speculation. Stoneman, 57 M.J. at 41. The
appearance of evil is not enough to justify action by an appellate court in a
particular case or, said another way, “[p]roof of command influence in the air”
will not suffice. Stombaugh, 40 M.J. at 213 (internal quotation marks
omitted) (alteration in original).
If the appellant raises some evidence of UCI the burden shifts to the
government to rebut the allegation by persuading the court, beyond a
reasonable doubt, that: (1) the predicate facts do not exist; (2) the facts do not
constitute UCI; (3) the UCI did not affect the findings or sentence; or (4) if on
appeal, by persuading the appellate court that the UCI had no prejudicial
impact on the court-martial. Salyer, 72 M.J. at 423; Biagase, 50 M.J. at 151.
2. Apparent UCI
“Even if there [is] no actual [UCI], there may be a question whether the
influence of command placed an ‘intolerable strain on public perception of the
military justice system.’” Stoneman, 57 M.J. at 42-43 (quoting United States
v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001)). Unlike actual UCI, which
requires prejudice to the accused, “no such showing is required for a
meritorious claim of an appearance of [UCI]. Rather, the prejudice involved . .
. is the damage to the public’s perception of the fairness of the military justice
system as a whole[.]” Boyce, 76 M.J. at 248. An appellant raises a claim of
apparent UCI by demonstrating (1) “facts, which if true, constitute [UCI];”
and (2) that “this [UCI] 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. at 249 (quoting
United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006)). As with actual UCI,
the appellant must show “some evidence” greater than “mere allegation or
speculation.” Biagase, 50 M.J. at 150. Some evidence of UCI will again shift
the burden to the government to disprove one prong or the other beyond a
reasonable doubt. Boyce, 76 M.J. at 249-250.
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With this framework for analyzing UCI in mind, we turn to the facts of
the case before us.
3. SECNAV’s statements to the media
The appellant identifies SECNAV as the singular source of the UCI
allegedly impacting him. It appears SECNAV became personally involved in
the appellant’s case two years after his first court-martial. The appellant
approached some of his congressional representatives and requested they
solicit clemency from SECNAV on his behalf.60 As later reported in the
media, SECNAV reviewed the records of the Hamdaniyah courts-martial,
denied the appellant’s request for clemency, and ordered that his four most
junior squad members be administratively separated from the Marine Corps
and Navy and that the squad lieutenant be ordered to show cause why he
should remain in the Marine Corps.
These were acts outside the court-martial process and within SECNAV’s
authority. Administrative separation is not an authorized court-martial
punishment.61 SECNAV was and is the highest separation authority in the
Marine Corps and the Navy.62 We will discuss SECNAV’s role and authority
in granting clemency below. But it is SECNAV’s public announcement of
these administrative actions and his reasons for them that form the basis of
the appellant’s UCI claims.
In November 2009, SECNAV gave interviews about his recent
administrative actions regarding the appellant and other members of his
squad implicated in the killing at Hamdaniyah. The appellant attached two
of the resulting news articles to his Motion to Dismiss for UCI: one printed in
The Marine Corps Times and one printed in The North County Times, a San
Diego regional newspaper.63 From the newspaper articles, we can conclude
that SECNAV’s audience was Marines, the Marine Corps community, and
specifically, the community surrounding Camp Pendleton, California.
One article quoted SECNAV on his reasons for denying the appellant’s
clemency request: “‘I thought that it was a sentence commensurate with the
60 AE LXXXVIII at 78.
61 R.C.M. 1003(b)(8).
62 See Marine Corps Separation and Retirement Manual at ¶¶ 1002.51, 6002.17,
6214.1 (Ch-2, 6 Jun 2007); Naval Military Personnel Manual, Art. 1910-704 (22 Aug
2002).
63 AE LXXXVIII at 74-78 (Gidget Fuentes, SecNav: No Clemency in Iraqi murder
plot, THE MARINE CORPS TIMES, Nov. 17, 2009; Mark Walker, Navy Secretary boots 4
Pendleton troops involved in Iraqi’s killing, THE NORTH COUNTY TIMES, Nov. 17,
2009).
33
United States v. Hutchins, No. 200800393
crime,’” and “a senior Marine Corps commander’s” reduction of the appellant
sentence from 15 years to 11 years “‘shows greatly substantial clemency
already.’”64 The reporter later identified that senior Marine Corps
commander as then-Lieutenant General James Mattis, the CA. The article
went on to share SECNAV’s impression of the case:
Mabus said he was surprised to learn that the killing was
“so completely premeditated, that it was not in the heat of
battle that not only was the action planned but the cover-up
was planned, and that they picked somebody at random, just
because he happened to be in a house that was convenient. He
was murdered.”
“It wasn’t somebody coming apart under pressure. It wasn’t
in the middle of action, in the middle of battle,” the [SECNAV]
said. “It was completely planned and completely executed. . . .
That was disconcerting.”65
The remainder of the article addressed SECNAV’s concurrent decision to
order the administrative separations of LCpl Jackson, LCpl Shumate, PFC
Jodka, and HM3 Bacos, and his order that the squad lieutenant show cause
why he should remain in the Marine Corps.
The second article led with SECNAV’s orders that the four junior squad
members be administratively separated and that the lieutenant show cause.66
While the second article reported SECNAV’s decision to deny clemency to the
appellant, it contained no comments from SECNAV about the appellant’s
clemency request. The reporter quoted SECNAV about the squad members
more generally:
“None of their actions lived up to the core values of the Marine
Corps and the Navy . . . . This was not a ‘fog of war’ case
occurring in the heat of battle. This was carefully planned and
executed, as was the cover-up. The plan was carried out exactly
as it had been conceived.”67
64 Id. at 74 (Fuentes, SecNav: No Clemency in Iraqi murder plot).
65 Id. at 75 (Fuentes, SecNav: No Clemency in Iraqi murder plot).
66 Id. at 77 (Walker, Navy Secretary boots 4 Pendleton troops involved in Iraqi’s
killing).
67 Id. at 77 (Walker, Navy Secretary boots 4 Pendleton troops involved in Iraqi’s
killing).
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The second reporter then quoted military law experts and two of the junior
squad members’ defense counsel on their reaction to the ordered
administrative separations.
SECNAV, a government actor capable of UCI,68 informed the Marine
Corps community and the general public of administrative actions he had
taken toward Marines and a Sailor implicated in the killing at Hamdaniyah,
all but one of whom had previously been convicted at court-martial. The
question before this court, then, is whether SECNAV’s public
pronouncements amount to “censure, reprimand, admonish[ment]” of, or an
attempt to threaten, coerce, or influence, another player in the court-martial
process.69 As this is not the first case in which a senior official has spoken out
about a high visibility issue, we look at two earlier cases resulting in similar
allegations of UCI.
In 1998, a Marine Corps aircraft struck cables supporting an alpine
gondola near Aviano, Italy; all 20 people in the gondola died. See United
States v. Ashby, 68 M.J. 108, 112 (C.A.A.F. 2009). While a Marine Corps
Command Investigation Board (CIB) conducted a preliminary investigation,
“there was intense international media coverage of the gondola incident and
unsettled political relations between the United States and Italy.” Id. at 126.
Upon completion of the preliminary investigation, the general officer who led
the CIB held a press conference announcing their findings. Id. at 127. The
general officer who ordered the investigation and would later refer charges
against Ashby issued a press release announcing his agreement with the
CIB’s conclusions. Id. One day after the Article 32, UCMJ, hearing in the
case, the Commandant of the Marine Corps (CMC) told one of Ashby’s peers
that the “mishap crew would be disciplined if they did anything wrong and
that ‘if someone is guilty, they need to be punished.’” Id. Behind the scenes,
the CMC, CA, the CIB, and other senior officials exchanged multiple phone
calls about the status of the investigation and its findings. Id. at 126.
Citing pressure on the CIB and multiple public statements about his case
from senior Marine Corps officials, Ashby raised a claim of UCI. Finding no
actual UCI, the CAAF focused on Ashby’s speculation vice presentation of
actual evidence:
His claims regarding the CIB are predicated on
communications between the members of the CIB and various
68 SECNAV is neither a CA nor a commanding officer, and is not subject to the
UCMJ, thus Article 37, UCMJ, does not appear to apply to him. The CAAF’s opinion
in Boyce, however, clearly holds that a service secretary can be the source of UCI. 76
M.J. at 252.
69 Art. 37, UCMJ.
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senior military officers. However, he has failed to show facts
which, if true, would demonstrate that the CIB members were
wrongfully influenced.
....
With regard to Ashby’s claim of [UCI] arising from the
other actions by senior military officials, including the
Commandant, Ashby has not pointed to any . . . specific facts
that the court-martial process was tainted by unlawful
command influence. Because of the highly publicized
international nature of the incident, it is understandable that
many senior military officials became publicly involved in the
aftermath and investigation of the accident. However, there is
no direct evidence that the actions of any of those officials
improperly influenced Ashby’s court-martial.
Id. at 128-29. Nor did the CAAF find some evidence of apparent UCI in the
public statements. Id. at 129.
While not necessarily an international incident, the issue of sexual
assault was one of the highest visibility issues in the military in 2012. The
CMC embarked on a four-month tour of Marine Corps installations,
delivering what was coined the “Heritage Brief” to as many Marine officers
and staff noncommissioned officers as he could reach. United States v.
Howell, 2014 CCA LEXIS 321, at *3 (N-M. Ct. Crim. App. 22 May 2014). In
the brief, the CMC stressed the legitimacy of 80% of sexual assault claims
and the underreporting of sexual assaults. Id. at *6-*7. He expressed his deep
disappointment in Marine Corps court-martial members, among others, for
becoming soft and retaining Marines who commit misconduct instead of
holding them accountable and getting rid of them. Id. at *7-*8. Howell’s
court-martial for sexual assault was pending at Parris Island, South
Carolina, when the CMC delivered the Heritage Brief there, id. at *3-*4, and
the Heritage Brief was the subject of national media coverage the week
before the members reported for the trial. Id. at *11.
On appeal, this court found some evidence of UCI in the CMC’s remarks
about sexual assault in the Marine Corps and the need to hold those who
commit sexual assault accountable. Id. at *28. Voir dire of the members
revealed that:
eight of the eleven members attended the Heritage Brief; many
had also either read White Letter 2-1270 or the media coverage;
70In conjunction with the Heritage Brief tour, the CMC issued White Letter 2-12,
addressed to all Marines, announcing a Marine Corps-wide campaign to address
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virtually all acknowledged a high degree of deference to the
CMC, particularly when he holds a strong opinion on a topic;
they recalled the Heritage Brief primarily focusing on two
things – sexual assault and accountability; almost all
remembered and accepted as true the CMC’s statement that
80% of sexual assault allegations are legitimate; and, most
would characterize the CMC as unhappy, frustrated, or
disappointed in his officers and senior enlisted for their failure
to hold Marines accountable.
Id. at *14. This court concluded that the three military judges presiding over
the case had failed to cure the appearance of UCI by not excusing more of the
members or rehabilitating them through curative instruction. Id. at 35-37. A
more carefully vetted panel of members, instructed on their independence as
fact finders, could have tried the case with an objective outsider’s confidence
in the integrity of the process. But this court did not believe the Heritage
Brief in and of itself was fatal and necessitated dismissal of the charges with
prejudice. Id. at *37-38; see also id. at *39 (Ward, S.J. concurring) (agreeing
with the majority that the Heritage Brief does not create an appearance of
UCI per se).
Returning to the case at bar, we look for evidence of actual influence or
some effect that suggests influence on military justice proceedings. In this
case, SECNAV publicized administrative actions he had already taken or
ordered while the appellant’s court-martial was still pending appeal before
this court in November 2009. But SECNAV made no mention of a pending
appeal. He cited the findings of the courts-martial as justification for the
administrative actions he had already taken.
The appellant accuses SECNAV of deliberately misrepresenting the facts
and findings of his case in the articles. SECNAV described the killing as
premeditated, contrary to the appellant’s acquittal of premeditated murder.
But in light of the appellant’s concurrent conviction for conspiracy to commit
murder, we cannot impugn intentional misrepresentation to his use of the
word “premeditated.” SECNAV also appeared not to have interpreted the
appellant’s acquittal of housebreaking and kidnapping as an acquittal of a
conspiracy to murder a random Iraqi man. In light of our analysis of that
issue above, we also decline to find SECNAV’s lack of precision intentionally
deceptive.
sexual assault and his expectation that leadership be engaged in addressing it.
Howell, 2014 CCA LEXIS 321, at *9.
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SECNAV’s words of “censure, reprimand, or admonish[ment]”71 were
reserved for the appellant, his squad members, and the squad lieutenant. To
the extent SECNAV rebuked earlier decisions to retain the three junior
Marines and the Sailor, he indirectly criticized administrative separation
decisions separate and distinct from the court-martial process. But there
were no expressions of disappointment or frustration with CAs, members, or
anyone else referring or adjudicating charges at courts-martial.
Although SECNAV’s comments, excerpted from the November 2009
articles, have been repeatedly reproduced in numerous publicly available
print and online articles, the record reveals no new comments or actions from
SECNAV regarding the appellant since the interviews in November 2009.
Other than a vague reference to requests for information about the status of
the appellant’s second court-martial from “the Secretariat” in a staff judge
advocate’s routine email correspondence,72 there is no evidence of SECNAV,
or anyone acting on his behalf, directly contacting anyone, in or out of the
Department of the Navy, about the appellant or this case. In fact, the
appellant alleges that SECNAV’s subordinates were influenced by nothing
more than their awareness of their superior’s opinions from these articles. In
his brief, the appellant repeatedly alleges that subordinates bowed to
SECNAV’s influence because they “were aware of Secretary Mabus’
comments.”73
4. Decision-makers allegedly influenced
We turn now to government actors and entities who subsequently made a
recommendation, a decision, a ruling, or took some action related to the
appellant’s first or second court-martial. Assuming without deciding that the
appellant has alleged facts constituting UCI in SECNAV’s words alone, we
proceed with the Biagase and Boyce tests. To find actual UCI, we must find
“that the proceedings were unfair” and “that [UCI] was the cause of the
unfairness.” Biagase, 50 M.J. at 150. To find apparent UCI, we must find that
“an objective, disinterested observer, fully informed of all the facts and
circumstances, would harbor a significant doubt about the fairness of the
proceeding.” Boyce, 76 M.J. at 249 (citation and internal quotation marks
omitted).
71 Art. 37, UCMJ.
72 AE LXXXIII.
73 Appellant’s Brief at 63.
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a. Naval Clemency and Parole Board (NC&PB)
The appellant cites “denied clemency/parole in Jan 2010” as the first of
the “unfair actions” resulting from SECNAV’s comments.74
Clemency is available to service members primarily through three
statutory avenues: Article 60, UCMJ; Article 74, UCMJ; and 10 U.S.C. § 953.
Article 60, UCMJ, requires a CA to consider matters an accused submits in
clemency before taking action on the findings and sentence of a court-martial.
At the time of the appellant’s first court-martial, the CA had unfettered
authority under Article 60, UCMJ, to “disapprove, commute, or suspend the
sentence in whole or in part.”75 Under Article 74(a), UCMJ: “The Secretary
concerned and, when designated by him, any Under Secretary, Assistant
Secretary, Judge Advocate General, or commanding officer may remit or
suspend any part or amount of the unexecuted part of any sentence,
including all uncollected forfeitures other than a sentence approved by the
President.” Pursuant to 10 U.S.C. § 953, SECNAV maintains the NC&PB as
his system for granting clemency.76
With a few inapplicable exceptions, SECNAV has delegated his authority
to act in matters of clemency and parole to the Assistant SECNAV for
Manpower and Reserve Affairs (ASN(M&RA)).77 The NC&PB is composed of
a civilian director and four senior officers representing communities in the
Marine Corps and Navy.78 The board’s mission is to “act for or provide
recommendations or advice to SECNAV in the issuance of decisions regarding
clemency or parole matters[.]”79 Among the board’s functions is to “submit to
SECNAV, with recommendation for final action . . .
(a) Cases in which SECNAV or a designee has indicated in
writing an official interest. . . .
(d) Any individual whose clemency may be the subject of
controversy or substantial congressional or press interest as
determined by SECNAV or a designee . . .
74 Id. at 61.
75 Art. 60(c)(2), UCMJ. The appellant’s CA reduced his sentence to confinement
from 15 years to 11 years pursuant to his Article 60, UCMJ, authority.
76 Secretary of the Navy Instruction (SECNAVINST) 5815.3J (12 Jun 2003).
77 Id. at ¶ 205 (emphasis omitted).
78 Id. at ¶ 307.
79 Id. at ¶ 306.
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(e) Cases in which the NC&PB recommends clemency for
any offender whose approved unsuspended, [sic] sentence to
confinement is in excess of 10 years . . . .”80
Clemency and parole are not rights but decisions within the NC&PB’s and
SECNAV’s discretion.81 While consideration of clemency is part of the post-
trial process, it is considered an executive, not a judicial function. See United
States v. Healy, 26 M.J. 394, 395-96 (C.M.A. 1988).
Given SECNAV’s statutory authority to grant or deny clemency, we are
skeptical that his influence over the process, assuming he had any, was
inappropriate, much less unlawful. As Chief Judge Baker wrote in his dissent
in Hutchins IV, “[SECNAV] would be hard pressed to exercise unlawful
command influence over the NC&PB clemency decision over which he retains
sole discretion with the sort of public comments attributed to him in this
case.” 72 M.J. at 317 (Baker, C.J., dissenting). Judge Ryan, in her concurring
opinion in Hutchins IV, acknowledged that “SECNAVINST 5815.3J limits the
NC&PB’s role in Appellant’s clemency process to one that merely advises the
Secretary on a matter committed, by statute, to his discretion.” Id. at 303
(Ryan, J. concurring in the result). The appellant accuses SECNAV of
interfering in his own process by revealing his opinion to his own advisers. If
SECNAV’s public comments are the source of UCI, the revelation of the
opinion, not the manner in which SECNAV reached it, is the issue. Assuming
without deciding that SECNAV could inappropriately influence his own
advisers by communicating a decision to them, we evaluate the evidence in
light of the tests in Biagase and Boyce.
The appellant offers no evidence as to why a decision to deny him
clemency or parole was unfair. He simply includes it in a list of unfavorable
actions and decisions made since November 2009 that he characterizes as
“unfair.”82
Moving to the third Biagase factor, causation, the appellant alleges that
the NC&PB reversed course and recommended no clemency—when they had
previously recommended a six-year reduction in confinement—because they
were “aware” of SECNAV’s opinion.83 First, that argument rests on the
unsupported assumption that board membership was constant from 2009 to
2010. But more important, the government presented evidence undermining
the purported effect of SECNAV’s statement. TC presented the acting
80 Id. at ¶ 308.a.(6) (emphasis omitted).
81 Id. at ¶ 308.a and b.
82 Appellant’s Brief at 61.
83 Id. at 63.
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ASN(M&RA)’s 10 March 2009 memorandum notifying the President of the
NC&PB of his disagreement with the board’s recommendation and denial of
any clemency for the appellant.84
In his Motion to Dismiss for UCI, the appellant detailed his further
requests for clemency and the results. In June 2010, the appellant was
released from confinement following this court’s decision to set aside his
conviction. After being ordered back into confinement in February 2011, the
appellant filed a special request for clemency with the NC&PB. The board
recommended reducing the appellant’s sentence by 251 days, and the acting
ASN(M&RA) approved.85 The NC&PB subsequently recommended parole in
June 2011, but the new ASN(M&RA) disapproved. A year later, the NC&PB
recommended against clemency and parole, but then in 2013, the board
recommended granting parole. ASN(M&RA) rejected the recommendation.86
This fluctuation further undermines any reasonable expectation of
consistency in recommendations from year to year.
Looking at the facts presented by both the appellant and the government,
we do not see “some evidence” that the appellant’s proceedings for requesting
clemency were unfair or that the appellant was denied additional clemency
because of SECNAV’s public statements. ASN(M&RA) rejected NC&PB’s
recommendation for clemency in March 2009 and communicated his decision
directly to the President of the NC&PB. The appellant has failed to
demonstrate how SECNAV subsequently interfered with the process or
inappropriately influenced the NC&PB by reaching the identical decision
eight months later and indirectly communicating it to the NC&PB via the
media.
Turning to apparent UCI of the NC&PB, we note that a member of the
CAAF previously concluded that “[n]o member of the public, aware of the
remarks made and the change in clemency recommendation that occurred,
could fail to harbor grave concerns that the change in the NC&PB’s clemency
recommendation was directly related to the Secretary’s intemperate remarks
about Appellant[.]” Hutchins IV, 72 M.J. at 302-03 (Ryan, J. concurring in the
result). However, it appears Judge Ryan reached her conclusion without the
benefit of ASN(M&RA)’s March 2009 memorandum, which the government
subsequently submitted during the appellant’s second court-martial. In light
of that evidence, we are convinced, beyond a reasonable doubt, that the
government has dispelled any notion that “[UCI] placed an intolerable strain
on the public’s perception of the military justice system because an objective,
84 AE LXXXIX at 23.
85 AE LXXXVIII at 8.
86 Id. at 8-9.
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disinterested observer, fully informed of all the facts and circumstances,
would harbor a significant doubt about the fairness of the proceeding.” Boyce,
76 M.J. at 249.
When the appellant raised the effect of UCI on the NC&PB before his
second court-martial, the government presented ASN(M&RA)’s 10 March
2009 memorandum to the President of NC&PB. In it, he declined to approve
the board’s recommendation to reduce the appellant’s confinement by six
years and denied any clemency for the appellant. In the routine
correspondence documenting his decision, ASN(M&RA) went on to respond to
the NC&PB’s recommendation with the following:
Having thoroughly reviewed Private Hutchins’ case,
specifically including the evidence presented on his behalf, I
found the adjudged sentence to be appropriate for the murder
of an innocent Iraqi national and the subsequent attempts to
fraudulently cast the incident as an attack upon United States
forces. These acts represented a significant departure from the
conduct expected of a Marine, no matter how dire the situation
or circumstances.87
The decision and the comments supporting it predated SECNAV’s comments
by eight months, and there is no evidence that SECNAV was aware of the
exchange or in any way influenced ASN(M&RA). In fact, the record suggests
that SECNAV only became involved in the appellant’s case when
congressional members approached him personally on the appellant’s behalf.
Any consultation between SECNAV and ASN(M&RA) in advance of
ASN(M&RA)’s decision to deny the clemency recommendation would have
defeated the purpose of SECNAV’s delegation of authority.
Although apparent UCI does not require evidence of causation, it is the
appearance that SECNAV abruptly derailed the appellant’s prospects for
clemency with his comments that constitutes the evidence of apparent UCI in
this case. ASN(M&RA)’s unequivocal denial of the appellant’s clemency in
remarkably similar terms, addressed directly to the board eight months
earlier, negates that appearance. No observer aware of that March 2009
denial can believe that, but for SECNAV’s comments, the appellant would
have received the NC&PB’s recommended clemency. To the extent
subsequent NC&PB board members felt chilled against recommending
clemency for the appellant, a reasonable observer would be hard pressed to
attribute that chilling effect to SECNAV instead of the senior official who had
already disapproved the recommendation as a matter of due course.
87 AE LXXXIX at 23.
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This evidence undermining the appearance that NC&PB reversed course
in response to SECNAV’s comments also addresses the first of three points
Judge Ryan found bolstered her concerns about the fairness of the clemency
process:
(1) the NC&PB’s dramatic change following the Secretary’s
comments that Appellant receive no clemency or parole; (2) the
subordinate status of all NC&PB members to the Secretary,
and (3) the fact that any NC&PB clemency or parole
recommendation would have to be approved by the
[ASN(M&RA)], who was presumably aware of the Secretary’s
position on this matter.
Hutchins IV, 72 M.J. at 302 (Ryan, J. concurring in the result) (internal
citations omitted). We respectfully submit that awareness of ASN(M&RA)’s
March 2009 memorandum significantly weakens any apparent causal link
between SECNAV’s comments and NC&PB’s change in recommendation.
Second, members of NC&PB are also subordinate to ASN(M&RA), and they
understand their role is to submit cases like the appellant’s with
recommendations for final action by ASN(M&RA) or SECNAV. Third, the
memorandum reveals that ASN(M&RA) communicated a disinclination to
award the appellant clemency eight months before he presumably learned of
SECNAV’s position on the matter. Thus, for NC&PB, SECNAV’s comments
were less of an influence than an echo.
Finally, someone aware that NC&PB membership and recommendations
are not consistent from year to year would not expect consistency in the
board’s recommendations. We are convinced beyond a reasonable doubt that
a reasonable observer, cognizant of all of the facts and circumstances, would
find SECNAV’s comments far less consequential to subsequent NC&PB
recommendations, if consequential at all. We find that, at the appellant’s
second court-martial, the government successfully rebutted the appearance of
UCI infecting the NC&PB’s consideration of the appellant’s clemency
requests.
b. The Judge Advocate General
Next, the appellant claims that, following this court’s decision in Hutchins
I, the Judge Advocate General (JAG) of the Navy succumbed to UCI and felt
compelled to certify the case to the CAAF for further review.
Pursuant to Article 67, UCMJ, and RULE FOR COURTS-MARTIAL (R.C.M.)
1203, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), the JAG
may “forward the decision of the Court of Criminal Appeals to the Court of
Appeals for the Armed Forces for review with respect to any matter of law.”
R.C.M. 1203(c)(1).
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On 22 April 2010, this court set aside the findings and sentence of the
appellant’s first court-martial, citing an improper severance of the appellant’s
attorney-client relationship with one of his detailed defense counsel.
Hutchins I, 68 M.J. at 631. The record was returned to the JAG for remand to
an appropriate CA with authority to order a rehearing. Id. Instead, the JAG
exercised his authority to certify issues related to the severance of counsel to
the CAAF. Hutchins II, 69 M.J. at 283-84. The CAAF found that severance of
the appellant’s relationship with one of his detailed defense counsel did not
materially prejudice his rights and remanded the case to this court for a new
review under Article 66, UCMJ. Id. at 293.
Citing the JAG’s occupation of his billet in November 2009—a billet in
which he was SECNAV’s direct subordinate—the appellant assumes the JAG
was aware of SECNAV’s comments. The appellant also offers media reports
that the JAG’s advisors recommended against certification of the case,
presumably to suggest that the JAG acted in accordance with something
other than sound legal judgment.88 He alleges that “certification of Hutchins I
to CAAF ultimately led to the reinstatement of Sgt Hutchins’ convictions, and
led to Sgt Hutchins serving an additional 29 months of confinement.”89
Assuming, arguendo, that the JAG was familiar with the newspaper
articles, the appellant fails to demonstrate that the decision to certify his case
was prejudicial, much less unfair. Had the JAG not certified the appellant’s
case to CAAF, he would have remanded it to a CA with the authority to order
a rehearing. Ultimately, that happened, after the CAAF’s decision to set
aside the findings and sentence in Hutchins IV. Attributing an additional 29
months of confinement to that delay is baseless, as there is no way to know
how the appellant’s rehearing and subsequent appeals might have unfolded
without the certification. Instead, the JAG acted within his authority, and
the appellant cannot show some evidence of an unfair proceeding or prejudice
resulting from the JAG’s decision, much less from UCI.
We agree with Chief Judge Baker’s observation that “subordination, a
divergence in staff advice, and a certification do not alone amount to some
evidence of [UCI]. Rather they reflect the ordinary process of review and
appeal.” Hutchins IV, 72 M.J. at 315 (Baker, C.J., dissenting). There is no
cause for an “objective, disinterested observer, fully informed of all the facts
and circumstances,” to “harbor a significant doubt about the fairness of the
proceeding.” Boyce, 76 M.J. at 249.
88 Regardless of what advice the JAG might have received, his judgment was
sound. The CAAF overturned this court’s decision based on one of the issues the JAG
certified. Hutchins II, 69 M.J. at 292-93.
89 Appellant’s Brief at 65.
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Accordingly, we find that the appellant has failed to satisfy his initial
burden of providing some evidence of UCI of the JAG.
c. Navy-Marine Corps Court of Criminal Appeals (NMCCA)
The appellant speculates that three former judges of this court “desire[d]
to validate the Secretary of the Navy” when they “failed to diligently review
the record and the pleadings, and were predisposed to affirm the conviction
and find that Secretary Mabus did not engage in [UCI]” in Hutchins III, 2012
CCA LEXIS 93.90
When the newspaper articles appeared in November 2009, the appellant’s
case was still pending its first review before this court. Although not
appearing to address the appellate court, SECNAV publicly shared that, after
reading the record of the appellant’s court-martial, he was convinced the
appellant led his squad in planning, executing, and covering up the
premeditated murder of an Iraqi civilian. According to SECNAV, the
appellant had received the sentence he deserved. Five months later, this
court set aside the findings and sentence from the appellant’s court-martial
and remanded the case for rehearing. The CAAF, comprised entirely of judges
outside the Department of the Navy, reversed and remanded to this court for
a new review. Two of the three appellate judges on the panel deciding
Hutchins III had concurred in the en banc decision to set aside in Hutchins I.
Hutchins III, 2012 CCA LEXIS 93, at *1 (opinion by Perlak, S.J. with
Carberry, S.J. and Modzelewski, J. concurring); Hutchins I, 68 M.J. at 631
(Carberry, S.J. and Perlak, J., concurring in the majority opinion). In
Hutchins III, this court affirmed the findings and sentence, finding no merit
in an allegation of UCI or other AOEs. 2012 CCA LEXIS 93, at *11, *32.
In addition to presenting some evidence of UCI, the appellant must also
overcome the presumption that appellate judges “know the law and apply it
correctly.” United States v. Clark, 75 M.J. 298, 300 (C.A.A.F. 2016) (citations
omitted). “Without such evidence, courts will not conclude that a military
judge was affected by unlawful command influence.” Hutchins IV, 72 M.J. at
314 (Baker, C.J., dissenting) (citing United States v. Rivers, 49 M.J. 434, 443
(C.A.A.F. 1998)).
To rebut “the presumption of regularity that applies to the acts of the
appellate military judges”91 and demonstrate some unfairness in the
appellate review of his case, the appellant focuses on the content of the
opinion. According to the appellant, the opinion’s author failed to recite the
charges, specifications, or language of which the appellant was acquitted, he
90 Id. at 69.
91 Clark, 75 M.J. at 300.
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summarized, instead of quoted, SECNAV’s statements as published in the
articles, and he “falsely claimed to have granted all the defense motions to
attach UCI-related documents to the record.”92 From this third, readily
provable oversight, the appellant concludes the panel either failed to read the
record of trial or the pleadings, or knowingly made a false statement.93
Reading the Hutchins III opinion, and particularly the UCI analysis, we find
no merit in the appellant’s allegations of impropriety, or unfairness, at the
appellate court level.
The appellant also falls short of demonstrating some evidence of
causation. To tie Hutchins III to SECNAV’s UCI, the appellant characterizes
the opinion as “a complete validation of Secretary Mabus’ actions and an
adoption of his view of the case”94 instead of the full or partial dismissal the
appellant requested.95 Striving to explain how Senior Judges Perlak and
Carberry suddenly abdicated their judicial responsibility under pressure from
SECNAV in Hutchins III, when they had been comfortable reversing the
convictions in Hutchins I, the appellant speculates that in April 2010 this
court was not yet aware of SECNAV’s comments. The appellant’s tangled
explanation of whom the UCI affected and when is nothing more than “mere
allegation or speculation.” Stoneman, 57 M.J. at 41; see also Hutchins, 72
M.J. at 314 (Baker, C.J., dissenting) (concluding that the “Appellant has not
moved beyond mere allegation or speculation in demonstrating ‘some
evidence’ that the CCA proceedings were unfair or affected by unlawful
command influence.”).
Finally, the CAAF’s subsequent decision setting aside the appellant’s
findings and sentence and authorizing a new trial in Hutchins IV nullifies
this court’s holdings in Hutchins III and any negative effect the appellant
might have suffered therefrom. He received a new trial. The appellant
disputes mootness by insisting this court shirked its Article 66, UCMJ, duty
to dismiss the charges with prejudice for factual insufficiency. But the
evidence against the appellant simply did not support a finding of factual
insufficiency. Despite the harmless misstatement regarding motions to attach
in Hutchins III, the appellant has failed to demonstrate some evidence that
his appeal was unfair or that the appellant judges ceded their judicial
independence in an effort to please SECNAV. For the same reasons, the
appellant has also failed to demonstrate some evidence that an objective,
92 Appellant’s Brief at 68 (citation omitted).
93 Id. at 69.
94 Appellant’s Reply of 6 Mar 2017 at 44.
95 Appellant’s Brief at 70.
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disinterested observer, fully informed of all the facts and circumstances,
would harbor a significant doubt about the fairness of the proceeding.
d. CAs and their staff judge advocates
The appellant avers that the two CAs who referred charges to his second
general court-martial and rejected his requests for administrative separation
in lieu of trial (SILT) and offers to plead guilty were compromised by UCI. He
asserts that UCI affected the staff judge advocates (SJAs) who advised them
as well.
To demonstrate the impact of UCI on his CAs in this case, the appellant
proffers evidence that the CAs were aware of SECNAV’s published statement
as they made decisions propelling the appellant toward court-martial.
The first of the two CAs, Lieutenant General (LtGen) Robert Neller,
USMC, referred the charges to the appellant’s second court-martial. In his
role as CA, he also received and ultimately denied appellant’s requests for
release from pretrial confinement, assignment to desired duties, SILT, and
acceptance of a proposed pretrial agreement.
In an affidavit signed 14 August 2014, LtGen Neller wrote:
I was generally aware of [sic] the Secretary of the Navy made
some comment to the press and others in 2009 about the case,
but do not know any of the specifics. This had no influence on
my referral decision. I did not receive any direct or indirect
influences from any senior officer or official regarding the
handling of this case.96
At an Article 39(a), UCMJ, session on 5 March 2015, LtGen Neller testified
that SECNAV’s comments “had no bearing on anything that [he] did in
relation to this case.”97 According to his testimony and his electronic
correspondence, he consulted only with his legal counsel about this case.
LtGen Neller referred charges based on his personal knowledge of the
charged events, having been in Iraq at the time, and his review of
statements.98 Excerpts of LtGen Neller’s electronic correspondence contain no
evidence that SECNAV or anyone else in LtGen Neller’s chain of command
communicated with him regarding his decisions.
The appellant alleges that UCI tainted advice the SJA, Colonel (Col) G,
gave LtGen Neller. SJAs, like military judges, enjoy the presumption of
knowledge of and compliance with the law and their independent duties,
96 AE LIV.
97 Record at 698.
98 Id. at 701.
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absent evidence to the contrary. See Ashby, 68 M.J. at 130 (C.A.A.F. 2009)
(presuming that “legal officers properly performed their professional duties
which included independent review of the evidence and preparation of only
those charges for which they determined probable cause existed.”). Relying on
support from Col G’s electronic correspondence, the appellant proffers that
Col G was cognizant of SECNAV’s comments, the motion to dismiss for UCI,
requests for information “originating from the ‘Secretariat,’” and LtGen
Neller’s desire for input from the SJA to the CMC following the reversal of
convictions.
The appellant also alleges that the SJA’s office and the prosecution “were
on the same ‘team’” because Col G addressed his deputy and the trial counsel
as “Team” in an email asking that defense counsel route their requests for
the CA through trial counsel.99 This does not amount to evidence that Col G
assumed a prosecutorial role. Nor did the email require Col G to disqualify
himself as the SJA. See United States v. Chessani, 2009 CCA LEXIS 84, *5-6,
*21 (N-M. Ct. Crim. App. 17 Mar 2009) (affirming apparent UCI based on the
presence of a disqualified SJA—who had interviewed Chessani, elicited
incriminating statements from him, and was “intimately involved in drafting
findings and conclusions” about him—when subordinate SJAs briefed the CA
about the case). The appellant has not presented sufficient evidence to
overcome the presumption of Col G’s compliance with the law or to
demonstrate that Col G or any of the other SJAs acted as an investigator,
military judge, or counsel in this case and thus should be disqualified.
The appellant also alludes to a memorandum to the Justice Department
requesting testimonial immunity for one of the appellant’s squad members. It
was likely drafted by TC, reviewed by Col G, and bore LtGen Neller’s
signature. Citing concerns about the armed forces’ image abroad and
difficulties in renewing the Status of Forces Agreement with Iraq, the
memorandum sought assistance “to reinstate Sergeant Hutchins’
convictions.”100 LtGen Neller testified that the wrong words were used in that
statement and clarified his intent was to seek retrial, not reinstatement of
convictions.101 Regardless of the propriety of references to political concerns
or Status of Forces Agreements, the memorandum provides no evidence of
SECNAV’s influence.
LtGen Neller was relieved by LtGen Kenneth McKenzie, USMC, who
then became the appellant’s CA. As evidence of the impact of UCI on LtGen
McKenzie, the appellant cites his denial of a SILT request. The appellant’s
99 Appellant’s Brief at 72.
100 AE LXXXVIII at 151.
101 Record at 704.
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SILT request “specifically highlighted Secretary Mabus’ comments in detail,
along with referencing Air Force cases of political retaliation against
convening authorities, as justification for the SILT, in order to restore public
confidence in the independence of convening authorities.”102 LtGen McKenzie
also refused to meet with the appellant’s civilian defense counsel or to
negotiate a pretrial agreement with him.
In an affidavit, LtGen McKenzie wrote, “I do not recall any prior specific
comments made about this case by any particular individual, including the
Secretary of the Navy, the Honorable Ray Mabus, General Hagee and
General Conway.”103 Based on his “independent review of this matter post-
referral,” LtGen McKenzie concurred with the SJA’s Article 34, UCMJ,
advice.104 LtGen McKenzie declared his independence as a CA, denied any
attempts to influence him, and affirmed his presumption of the appellant’s
innocence and right to a fair trial.105
At the Article 39(a), UCMJ, hearing, LtGen McKenzie testified to having
no recollection of SECNAV’s comments at the time of their publication and to
learning about them only through the appellant’s motion to dismiss for UCI.
When asked for his “immediate reaction” to SECNAV’s comments, LtGen
McKenzie testified, “I’m dealing in, you know, 2014, 2015 and they don’t
seem to have any bearing on what I’m going to do and what actions I’m going
[to] take as the [CA] in the case. So, no, they did not particularly concern
me.”106 LtGen McKenzie confirmed that he had conducted his own
independent review of the appellant’s case upon assuming command from
LtGen Neller and concurred with the decision to refer charges.107
With regard to LtGen Neller, Col G, and LtGen McKenzie, the appellant
submits that their unwillingness to grant his requests for a more favorable
disposition, coupled with their full knowledge of SECNAV’s opinions in 2009,
constitutes at least some evidence of UCI. Their electronic correspondence
reveals no evidence of influence from SECNAV or a lack of independence in
pursuing the case.108 But for the briefings and publicity surrounding the
appellant’s motion to dismiss for UCI, it is unclear whether the CAs would
have even known what SECNAV said. Neither LtGen Neller nor LtGen
102 Appellant’s Brief at 81 (citation omitted).
103 AE LVIII at 3.
104 Id. at 4.
105 Id.106 Record at 785.
107 Id. at 790-91.
108 AE LXXXIII.
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McKenzie could have testified more emphatically about the irrelevance of
SECNAV’s comments to their deliberative process or their independence of
judgment. The appellant has again fallen short of presenting some evidence
of either unfairness or causation.
Finally, there is not some evidence of apparent UCI. This case has none of
the hallmarks of apparent UCI identified in Boyce. In Boyce, the CA had
drawn considerable public criticism from Congress and the media for setting
aside sexual assault convictions in the court-martial of a lieutenant colonel
and direct but quiet criticism from the JAG of the Air Force for declining to
refer charges of sexual assault against an airman. 76 M.J. at 244-45. The
newly confirmed Secretary of the Air Force directed the Air Force Chief of
Staff to call the CA and present him with two choices—“voluntarily
retire from the Air Force at the lower grade of major general, or wait for the
Secretary to remove him from his command in the immediate future.” Id. at
251-52. Within three hours of the call, the CA decided to retire early. Id. at
252. In formally requesting retirement, the CA wrote, “[m]y decisions as a
General Court Martial [sic] [CA] . . . have come under great public scrutiny,
and media attention . . . will likely occur on subsequent sexual assault cases I
deal with.” Id. at 245-46 (internal quotation marks omitted). The effect on
Boyce came ten days later when the CA referred charges of sexual assault
against him. Id. The CAAF found the appearance of UCI in the facts
preceding the CA’s decision. Id. at 251. They “conclude[d] that members of
the public would understandably question whether the conduct of the
Secretary of the Air Force and/or the Chief of Staff of the Air Force
improperly inhibited [the CA] from exercising his court-martial convening
authority in a truly independent and impartial manner as is required to
ensure the integrity of the referral process.” Id. at 252-253; see also United
States v. Gerlich, 45 M.J. 309, 314 (C.A.A.F. 1996) (setting aside findings and
sentence because a general court-martial CA wrote a letter to his subordinate
special court-martial CA questioning his resolution of a sexual assault
allegation with nonjudicial punishment and “request[ing]” that the special
court-martial CA consider further investigation).
In contrast, there is no evidence of implicit or explicit threats of
retaliation, congressional chastisement, or even a phone call to any of the
CAs in this case at the behest of SECNAV or anyone else. SECNAV’s
disapproval of decisions to retain some of the appellant’s most junior squad
mates, expressed five years earlier, does not amount to the kind of “censure,
reprimand, or admonish[ment]”109 that creates an appearance of UCI. Unlike
the CA in Boyce, who was forced to retire for his actions, both LtGen Neller
and LtGen McKenzie affirmed their unhindered independence and the
109 Art. 37, UCMJ.
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absence of SECNAV’s influence from their decisions. Again, the appellant has
offered nothing more than speculation and allegation. Unfavorable decisions
made with awareness of a five-year-old SECNAV article and nothing more do
not create an appearance of UCI.
e. Military judge
Finally, the appellant alleges that the military judge, with full awareness
of SECNAV’s statements, made legally unsupported rulings on motions
related to UCI to protect SECNAV and his own post-retirement employment
in the Department of Defense.
Absent evidence to the contrary, military judges enjoy a presumption of
resistance to UCI in their decisions. Rivers, 49 M.J. at 443; see also
Stombaugh, 40 M.J. at 213 (holding that the court would “not presume that a
military judge has been influenced simply by the proximity of events which
give the appearance of command influence in the absence of a connection to
the result of a particular trial.” (citations omitted)).
It is worth examining a case of unlawful influence of a military judge for
perspective. In Salyer, prosecutors and a supervisory circuit judge took action
toward the military judge presiding over Salyer’s court-martial. “Perplexed”
by one of the military judge’s rulings on a pretrial motion, trial counsel
accessed the military judge’s personnel record looking for evidence of a
potential personal bias. Salyer, 72 M.J. at 420. Trial counsel then questioned
the military judge about personal information from his file in voir dire and
challenged him for actual and implied bias. Id. Eager to warn the military
judge’s supervisory judge about this unusual turn of events, one of the senior
prosecutors shared the discovered personal information and plans for voir
dire with the supervisory judge as a courtesy. Id. In a subsequent
conversation between the two judges, the supervisory judge mentioned the
phone call from the prosecutor, the perplexing ruling, the reaction to it, and
the government’s intent to seek the military judge’s recusal. Id. at 421.
Recusing himself from the case, the military judge cited “an inappropriate
method for addressing a disagreement with [his] ruling” as cause for a
reasonable person to question his impartiality on future decisions in the case.
Id. at 421-422. The CAAF agreed with the military judge, finding that “[a]n
objective, disinterested observer, fully informed of these facts and
circumstances, might well be left with the impression that the prosecution in
a military trial has the power to manipulate which military judge presides in
a given case . . . .” Id. at 427; see also Lewis, 63 M.J. at 414, 416 (finding
actual UCI in the command’s “unlawful effort to unseat an otherwise
properly detailed and qualified military judge” and ordering dismissal with
prejudice because the government could not render its error harmless). In
Salyer’s case, the government successfully replaced the military judge.
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The appellant offers no evidence of prosecutorial skullduggery,
government efforts to embarrass, manipulate, or replace the military judge in
this case, or criticism or questions from anyone in the military judge’s chain
of command. Instead, the appellant attempts to demonstrate unlawful
influence with the military judge’s subordinate position to SECNAV, his
knowledge of SECNAV’s statements five years earlier, and the rulings he
made. Once again, the appellant’s differing interpretation of the law and the
facts is not evidence of an unfair proceeding. SECNAV’s position at the top of
the military judge’s chain of command and the theoretical prospect of
downward pressure alone are not evidence of causation. The appellant
implies that the military judge’s post-retirement employment aspirations
with the Department of Defense and possibly the Department of the Navy are
evidence of UCI. Without evidence that SECNAV retaliated against—or
rewarded—anyone for their actions resolving the Hamdaniyah cases, such an
implication is bare allegation and speculation.
While this court does not condone senior officials making public
comments about courts-martial pending appeal, the appellant has, with one
exception, failed to present some evidence of actual or apparent UCI on his
court-martial proceedings. In the case of apparent UCI affecting the NC&PB,
the government rebutted the appearance of UCI, and we are convinced,
beyond a reasonable doubt, that an objective observer, cognizant of all the
facts and circumstances, would not harbor a significant doubt about the
fairness of the clemency process.
D. Apparent UCI from the search of defense counsel’s office
The appellant argues that apparent UCI arising from a government
search of one of his detailed defense counsel’s office necessitates setting aside
his findings and sentence and ordering the government to pay reasonable
attorney fees for his civilian defense counsel.
“‘Where the issue of unlawful command influence is litigated on the
record, the military judge’s findings of fact are reviewed under a clearly-
erroneous standard, but the question of command influence flowing from
those facts is a question of law that this Court reviews de novo.’” United
States v. Reed, 65 M.J. 487, 488 (C.A.A.F 2008) (quoting United States v.
Wallace, 39 M.J. 284, 286 (C.M.A. 1994)).
The command authorized search at issue arose and was litigated in a
separate case this court has reviewed and affirmed. United States v.
Betancourt, No. 201500400, 2017 CCA LEXIS 386, unpublished op. (N-M. Ct.
Crim. App. 6 Jun 2017), rev. denied, __ M.J. __, 2017 CAAF LEXIS 1118(C.A.A.F. Dec. 4, 2017). On 2 May 2014, Criminal Investigative Division
(CID) agents executed a command search authorization and searched
multiple defense counsel offices within Legal Support Services Section (LSSS)
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–West spaces aboard Marine Corps Base Camp Pendleton, California. Agents
suspected a cell phone belonging to Sgt Betancourt was in the office of one of
his defense attorneys. Id. at *9-*10. With the cooperation of the senior trial
counsel, three CID agents searched defense counsel offices, and a fourth
agent recorded video of the search. Id. at *11. “The agents were professional
but extremely thorough, searching through desk drawers, file cabinets,
lockers, garbage cans, and ceiling tiles. The agents opened case files, but
quickly flipped through the files without pausing to read documents within
the files.” Id. at *12.
This court found some evidence of apparent UCI in Betancourt but was
“convinced beyond reasonable doubt that an objective, disinterested observer,
fully informed of all the facts and circumstances, would not harbor a
significant doubt as to the fairness of [Betancourt’s] court-martial[.]” Id. at
*27. “[T]he government took significant corrective action after the search to
limit disclosure of any information obtained by CID agents during the search.
This included removing the [senior trial counsel], the trial counsel, and the
investigators from further involvement with the investigation or court-
martial. . . . The video recording of the search was secured by order until a
special investigating officer was appointed to review it for potential leakage
of privileged information. Subsequently, the recording was sealed by the
military judge who reviewed it in camera.” Id. at *27-*28.
Unbeknownst to prosecutors, the command search authorization was not
limited to Sgt Betancourt’s counsels’ offices, and the search extended to the
offices of five other defense counsel not associated with Sgt Betancourt’s case.
Id. at *11-*12. One of the offices searched belonged to Captain (Capt) S.L.,
one of the detailed defense counsel in the case before us. The appellant’s TDC
filed a motion to disqualify members of LSSS-West and any CID personnel
involved in the 2 May 2014 search, and the parties litigated the impact of the
search on the appellant’s case.
In his written ruling on the motion, the military judge reached findings of
fact supported by the record that are not clearly erroneous. Returning to his
office after it was searched, Capt S.L. “noticed ‘many books and binders out of
place on the bookshelf’ where his kept his Hutchins case file, [but] he could
not say whether documents therein were searched.”110 The four CID agents
who participated in the search testified to only flipping through file folders in
search of the cell phone and not reading the files’ contents. Review of the
video recording of the search of Capt S.L.’s office111 by the military judge and
this court corroborates the agents’ testimony. The video indicates that the
110 AE LIX at 2 (quoting AE XXXI at 33)
111 AE LVII.
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search of Capt S.L.’s office lasted about five minutes. The agents also testified
that they knew nothing about the appellant’s case.
TC who prosecuted the appellant at his second court-martial were also
not involved in the search authorization or the search. As documented in an
affidavit, Capt P.M. “played no role in the planning or execution of the
Betancourt Command Authorization for Search and Seizure.”112 Almost six
weeks after the search, he was assigned to the trial team in the Betancourt
case because the original trial counsel were disqualified. Despite litigating
issues related to the search in multiple courts-martial, Capt P.M. never
viewed video of the search or discussed it with the senior trial counsel who
facilitated the search, any of the investigators, or the judge advocate who
conducted the taint review.113 Capt P.M. stated in his affidavit, “I have not
heard, reviewed, seen, learned, read, or gleaned anything related to Sgt
Hutchins as a result of the search.”114 The other trial counsel, Major (Maj)
A.W., also swore in an affidavit, “I have not heard, reviewed, seen, learned,
read, or gleaned anything related to Sgt Hutchins as a result of the
search.”115 Maj A.W. was stationed in Austin, Texas, on the day of the search.
The military judge concluded that the circumstances of the search of
defense counsel offices raised some evidence of apparent UCI in this case. We
do not dispute that finding, particularly in light of our similar conclusion in
Betancourt. While the military judge found the government could not
disprove the “predicate facts on which the allegation of UCI is based[,]” he
determined the government had proven beyond a reasonable doubt that a
reasonable person with knowledge of the relevant facts would not perceive
that the deck is unfairly stacked against the accused.116
Reviewing the military judge’s legal conclusion de novo, we also find the
government has rebutted, beyond a reasonable doubt, any notion that “an
objective, disinterested observer, fully informed of all the facts and
circumstances, would harbor a significant doubt about the fairness of the
proceeding” against the appellant. Boyce, 76 M.J. at 249 (citation and
internal quotation marks omitted). Despite the government’s troubling
112 AE LIX at 15.
113 Id. at 15-17. Capt P.M. acknowledged receiving a call from one of the CID
agents after the agent received a call from the appellant’s civilian defense counsel.
The agent did not disclose any information about the search with Capt P.M. during
that call.
114 Id. at 15.
115 Id. at 18.
116 Id. at 13-14; see United States v. Morrison, 66 M.J. 508, 510-11 (N-M. Ct.
Crim. App. 2008).
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intrusion into defense counsel spaces, the testimony and the video recording
of the search of Capt S.L.’s office provide overwhelming evidence that any
exposure to privileged information about the appellant’s case, if it occurred,
was momentary, at most. The CID agents who executed the search were
wholly uninvolved with the appellant’s investigation and therefore would not
have recognized the significance of any information they might have
glimpsed. The agents were subject to a gag order, prohibiting them from
discussing what they might have seen with anyone. There is no evidence to
suggest any agent violated that gag order or that any privileged information
about the appellant’s defense reached the prosecution in his case. The
government has also dispelled, beyond a reasonable doubt, any suspicion that
prosecutors directed, knew, or even anticipated that CID agents would gain
access to privileged files about the appellant.
Corrective measures we deemed adequate to prevent apparent UCI in
Betancourt are more than adequate to protect against apparent UCI in this
case, where the appellant was subject to substantially less exposure. We find
no apparent UCI in this case stemming from the brief search of Capt S.L.’s
office.
E. Recusal of the military judge
The appellant avers that the military judge erred in refusing to recuse
himself based upon actual and/or apparent bias stemming from (1) UCI, (2) a
conflict of interest with supervisory judges in his chain of command, and (3)
his independent investigation and ex parte communications.
We review a military judge’s decision not to recuse himself for an abuse of
discretion. United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (citing
United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001)).
R.C.M. 902 details the grounds for disqualification of a military judge:
(a) In general. Except as provided in subsection (e) of this rule,
a military judge shall disqualify himself or herself in any
proceeding in which that military judge’s impartiality might
reasonably be questioned.
(b) Specific grounds. A military judge shall also disqualify
himself or herself in the following circumstances:
(1) Where the military judge has a personal bias or
prejudice concerning a party . . . .
....
(5) Where the military judge . . . :
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(B) Is known by the military judge to have an interest,
financial or otherwise, that could be substantially
affected by the outcome of the proceeding . . . .
As with UCI, maintaining public confidence in the independence and
impartiality of military judges requires us to consider both actual bias and
the appearance of bias as possible bases for disqualification. See United
States v. Quintanilla, 56 M.J. 37, 44-45 (C.A.A.F. 2001). “The first step asks
whether disqualification is required under the specific circumstances listed in
[R.C.M.] 902(b). If the answer to that question is no, the second step asks
whether the circumstances nonetheless warrant disqualification based upon
a reasonable appearance of bias.” Id. at 45.
“There is a strong presumption that a judge is impartial, and a party
seeking to demonstrate bias must overcome a high hurdle, particularly when
the alleged bias involves actions taken in conjunction with judicial
proceedings.” Quintanilla, 56 M.J. at 44 (citation omitted). But “‘[a]ny
conduct that would lead a reasonable man knowing all the circumstances to
the conclusion that the judge’s impartiality might reasonably be questioned is
a basis for the judge’s disqualification.’” Id. at 78 (quoting United States v.
Kincheloe, 14 M.J. 40, 50 (CMA 1982) (additional citation and internal
quotation marks omitted); see also R.C.M. 902(a).
The appellant filed a pretrial motion seeking recusal of the military judge
and the entire Navy-Marine Corps Trial Judiciary.117 The military judge
denied the motion for recusal without making a written ruling. In the
absence of detailed findings of fact and conclusions of law on the record, we
must accord his ruling less deference. See Flesher, 73 M.J. at 312. With the
exception of one subsequently mooted basis for judicial recusal, the appellant
has raised the same purported sources of judicial bias on appeal. We now
parse those allegations for reasonable questions about the military judge’s
impartiality.
1. UCI
The appellant argues that SECNAV’s UCI and evidence of its effect on
members of this court create and confirm an actual, or at least apparent, bias
against the appellant in the military judge.
Our superior court has recognized that we test for apparent bias in
violation of R.C.M. 902(a) in essentially the same way we test for apparent
UCI. See Lewis, 63 M.J. at 415. “We focus upon the perception of fairness in
the military justice system as viewed through the eyes of a reasonable
member of the public.” Id. Accordingly, the appellant reiterates his
117 AE C.
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arguments for finding actual and apparent UCI—SECNAV’s 2009 comments
poisoned the military justice system adjudicating the appellant, whether that
adulteration manifested as UCI or apparent bias. Only the requested
remedies are different. Instead of arguing for dismissal of the charges, the
appellant challenges the military judge’s decision not to recuse himself.
In section C of this opinion, we exhaustively analyzed the appellant’s
allegations of actual and apparent UCI. Having found no actual or apparent
UCI impacting the appellate court or the military judge, we necessarily
conclude that neither the military judge, nor the former appellate court
judges who participated in Hutchins I or Hutchins III, labored under an
actual or apparent bias born of SECNAV’s 2009 comments about this case.
2. Conflict of interest with the judicial chain of command
The appellant also asserts that the military judge suffered from a conflict
of interest with supervisory judges in his chain of command.
R.C.M. 902(b)(5) targets a military judge’s conflicts of interest by
demanding disqualification when he or she “has a personal interest, financial
or otherwise, that could be substantially affected by the outcome of the
proceeding.” In this context, a personal interest is “extra-judicial” as opposed
to judicial. Quintanilla, 56 M.J. at 43 (citing Liteky v. United States, 510 U.S.
540, 549 (1994); In re Corrugated Container Antitrust Litigation, 614 F.2d
958, 964 (5th Cir. 1980); In re Boston’s Children First, 244 F.3d 164, 168 (1st
Cir. 2001)). The UCMJ acknowledges and mitigates the personal interest
that “results from the well-recognized effect of fitness-report evaluations on a
military lawyer’s service advancement and security.” United States v. Mabe,
33 M.J. 200, 205 (C.M.A. 1991) (citations omitted). Article 26(c), UCMJ,
prohibits a CA or any member of a CA’s staff from “prepar[ing] or review[ing]
any report concerning the effectiveness, fitness, or efficiency of the military
judge so detailed, which relates to his performance of duty as a military
judge.” The Navy Performance Evaluation System Manual specifically
addresses evaluation of the performance of military justice duties: “[Fitness
reports] on military judges and appellate judges may properly evaluate their
professional and military performance, but may not include marks,
comments, or recommendations based on their judicial opinions or rulings, or
the results thereof.”118
With safeguards such as these in place, our superior court has held that
the administration of military justice by judges subject to a military chain of
command does not present an inherent conflict of interest. See United States
v. Mitchell, 39 M.J. 131, 142 (C.M.A. 1994) (rejecting Mitchell’s argument
118 Bureau of Personnel Instruction 1610.10D, Encl (2) at I-3 (1 May 2015).
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that the naval officer fitness report system creates “a reasonable possibility of
a perceived pecuniary interest of his judges in deciding his case unfairly” as
“simply too speculative and remote to violate the Constitutional norm”
against an appearance of unfairness). See also United States v. Graf, 35 M.J.
450, 466 (C.M.A. 1992) (affirming the effectiveness of the UCMJ and Court of
Military Appeals in protecting military judges from conflicts with their own
“security of tenure” and “financial security” in the context of the military
chain of command and performance evaluation system). Nor does the military
justice system, per se, foster an apparent conflict of interest in violation of
R.C.M. 902(a). See United States v. Norfleet, 53 M.J. 262, 269 (C.A.A.F. 2000)
(holding “that preparation of fitness reports for appellate military judges by
senior judge advocates does not create a circumstance in which the
impartiality of a judge might reasonably be questioned under [R.C.M.]
902(a)” (citation omitted)).
An actual or apparent conflict of interest between a military judge’s
rulings and his or her personal interest in protecting career prospects arises
only in extraordinary circumstances. An example is when a supervisory judge
deviates from the UCMJ, regulations, and case precedent and affirmatively
questions a subordinate judge’s ruling. See Mabe, 33 M.J. at 205-06 (referring
to a memorandum from a Chief of the Trial Judiciary to a military judge
about the subordinate judge’s sentences as a “military justice taboo” and
concurring that removal of the offending chief trial judge from the military
judge’s chain of command restored the appellant’s right to a fair trial and the
integrity of the military justice system). The appellant offers no evidence of
supervisory intrusion on subordinate discretion in this case.
a. Conflict regarding SECNAV’s alleged UCI and former appellate judges
in the chain of command
In support of their motion to recuse the military judge, the appellant
conducted voir dire. First, TDC asked the military judge to detail his chain of
command within the trial judiciary. The military judge identified Col M.R.,
the Circuit Judge of the Western Judicial District, as his immediate superior
and confirmed Col M.R. would sign his next fitness report. Col M.R. reported
directly to the Chief Trial Judge, who in turn reported to the Chief Judge of
the Department of the Navy. All of the military judges, as members of the
Department of the Navy, were subordinate to SECNAV.
In response to the basis for the challenge—SECNAV’s 2009 comments
about this case—the military judge disavowed any memory of them prior to
reading the appellant’s pleadings regarding UCI. Then he stated:
I profoundly and deeply don’t care what the Secretary of the
Navy thinks as far as this case goes. . . .
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As how it effects [sic] my career, a post-command senior O-6
who is retiring next summer, don’t care. Deeply, profoundly
don’t care. Deeply, profoundly don’t care what [the Chief Trial
Judge] or [the Chief Judge of the Department of the Navy]
would think about it as well.
They are professional colleagues and I think they would be
profoundly disappointed in me . . . if I took any action,
whatsoever, of speculating about what they might think. That
would be abdicating my role as a military judge, as an officer of
the Navy, and a member of the Judge Advocate General [sic]
Corps, and certainly of the California Bar.
. . . I just want to make it clear on the record that,
something that Secretary Mabus may have said in 2009 has
beyond no bearing on anything that I might do or might not do
in this case.119
To overcome the presumption against a conflict of interest in the military
justice system and the military judge’s emphatic denial of any personal
interest susceptible to his rulings in this case, the appellant asserts that the
military judge had a personal interest in not embarrassing his supervisory
judges with adverse findings about them. According to the appellant, the
prospective damage to these senior judges’ reputations necessitated the
military judge’s recusal. See Norfleet, 53 M.J. at 271 (acknowledging “[t]here
may be cases in which the ruling by a military judge on an issue would have
such a significant and lasting adverse direct impact on the professional
reputation of a superior for competence and integrity that recusal should be
considered.”).
Motions filed on behalf of the appellant solicited the military judge to
make findings about his chain of command. The Chief Trial Judge and the
Chief Judge of the Department of the Navy were both former members of this
court and concurred in the majority opinions in Hutchins III and Hutchins I,
respectively. In his motion to dismiss for UCI, the appellant asked the
military judge “to make potentially adverse findings against the [Chief Judge
of the Department of the Navy] and [the Chief Trial Judge] [.]”120 Specifically,
the military judge might have to determine that they “were unlawfully
influenced by Secretary Mabus, and/or had made/adopted materially false
statements.”121 As previously discussed infra in section C, we do not impute
119 Record at 96.
120 Appellant’s Brief at 120.
121 Id.
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mendacity to the Chief Judge of the Department of the Navy and the Chief
Trial Judge from immaterial discrepancies in prior appellate opinions. Nor do
we fault the military judge for failing to do so.
b. Conflicts involving the military judge’s immediate supervisor
Col M.R., the military judge’s immediate supervisor, was the original
military judge in this case before recusing himself during pretrial motions.
He had a personal relationship with another senior Marine judge advocate
likely to testify as a witness in litigation of a motion. Nonetheless, the
appellant argued that Col M.R. remained a witness to contested facts in this
case.122 First, in his position as the circuit judge, Col M.R. possessed
investigative materials and notes relevant to the CID search of defense
counsel spaces in Betancourt, discussed, supra, in section D. Second, the
appellant alleged that Col M.R., after learning of the appellant’s continued
instructor role at the Marksmanship Training Unit (MTU) aboard Camp
Pendleton, notified the senior Marine judge advocate with whom he had a
personal relationship. Shortly thereafter, that senior Marine judge advocate
advised his commander to remove the appellant from the MTU—a transfer
the appellant asserts violated Article 13, UCMJ.
According to the appellant’s motion for recusal, these allegations
necessitate the military judge’s recusal because (1) a trial judge’s interference
in the duty assignment of an accused appearing before him “would cause
significant damage to the public perception of the integrity of the military
justice system”123 and must be fully vetted “through witness testimony at
open hearing.”124 But (2) that trial judge, Col M.R., could not testify if he
must appear before his subordinate military judge. So the subordinate
military judge must recuse himself. Like the military judge, we decline the
appellant’s invitation to resolve these allegations. Once Col M.R. recused
himself from this court-martial, his own possible bias against the appellant
became irrelevant. The court could and did adjudicate the CID search of
defense counsel spaces and the appellant’s Article 13, UCMJ, motion without
further inquiring into Col M.R.’s possible involvement. Our review of these
two issues, submitted to us as AOEs, confirms they were susceptible to
resolution without the need to call Col M.R. to the stand.
A subordinate military judge should disqualify him or herself from ruling
on a credible allegation of impropriety by a supervisory judge. The desire to
spare a superior such an ordeal does create an apparent, if not an actual,
122 AE C at 16.
123 Id. at 17.
124 Id.
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conflict of interest. But a party cannot incite a conflict by raising unsupported
and/or irrelevant allegations of judicial misconduct.
In this case, the appellant has not presented evidence of a credible
extrajudicial threat to the military judge that overcomes the presumption
that his supervisors will follow the law. The prospect of a conflict of interest
in presiding over this case remains far too speculative and remote to
constitute an actual or apparent conflict of interest necessitating recusal.
3. Independent investigation / ex parte communications
The appellant accuses the military judge of violating the judicial canon
prohibiting ex parte communications and submits this violation as evidence of
bias against the appellant necessitating his recusal.
In pursuit of the military judge’s recusal, the appellant levies a serious
charge against the military judge and at least three other current and former
Navy judge advocates. Pursuant to instruction,125 the military judge’s conduct
was governed by the American Bar Association (ABA) Model Code of Judicial
Conduct. Canon 2.9 of the ABA Model Code governs ex parte communications:
(A) A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the
judge outside the presence of the parties or their lawyers,
concerning a pending or impending matter, except as follows:
(1) When circumstances require it, ex parte communication
for scheduling, administrative, or emergency purposes,
which does not address substantive matters, is permitted,
provided:
(a) the judge reasonably believes that no party will gain
a procedural, substantive, or tactical advantage as a
result of the ex parte communication; and
(b) the judge makes provision promptly to notify all
other parties of the substance of the ex parte
communication, and gives the parties an opportunity to
respond.
ABA, Model Code of Judicial Conduct, Canon 2.9: Ex Parte Communications
(2011 ed.) (internal asterisks omitted). While the facts of the military judge’s
alleged breach of this canon are necessary to our analysis of this AOE, we
need not determine whether he actually breached it. “[A]ctivity inconsistent
with standards of judicial conduct does not mandate recusal unless it rises to
the level of a violation of applicable disqualification standards.” Butcher, 56
125 Judge Advocate General’s Instruction 5803.1D at ¶ 7 (1 May 2012).
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M.J. at 92 (citing R.C.M. 902). Thus we need only focus on whether the
military judge’s ex parte communications required his disqualification and
recusal.
When an allegation of ex parte communication forms part of a motion for
recusal,
[a] decision on disqualification will “depend on [1] the nature of
the communication; [2] the circumstances under which it was
made; [3] what the judge did as a result of the ex parte
communication; [4] whether it adversely affected a party who
has standing to complain; [5] whether the complaining party
may have consented to the communication being made ex
parte, and, if so, [6] whether the judge solicited such consent;
[7] whether the party who claims to have been adversely
affected by the ex parte communication objected in a timely
manner; and [8] whether the party seeking disqualification
properly preserved its objection.”
Quintanilla, 56 M.J. at 44 (quoting RICHARD E. FLAMM, JUDICIAL
DISQUALIFICATION § 14.3.1 at 411-12 (1996) (footnotes omitted)). Our
analysis will focus primarily on the first four of the eight factors above, as the
last four all inure to the appellant. For clarity, we will begin with factor 2,
the circumstances under which the communication was made, and then
proceed to the nature of the communication, factor 1.
a. Circumstances under which communications were made
On 24 September 2014, the appellant’s trial defense counsel requested the
CA approve and provide logistical support for a site visit to Iraq.126 Upon
denial of this request, the appellant filed a motion to compel a site visit. 127
Both the appellant and the government acknowledged that the appellant’s
previous trial defense team traveled to Iraq and briefly visited the alleged
crime scene in January 2007. In his written ruling denying the motion to
compel a site visit, the military judge noted that “the current Defense team
has access to the files from the former team which visited the situs—and may
consult with former counsel Lt.Col. [J.S.] who has been made available by his
supervisor.”128
Lieutenant Colonel (LtCol) J.S. was one of the appellant’s detailed
defense counsel at his first court-martial, and he traveled to Iraq with the
126 AE LXIX at 4, 12.
127 AE LXIX.
128 AE CXXV at 6.
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appellant’s original civilian defense counsel in January 2007. By the time of
the second court-martial and the motion to compel, LtCol J.S. had
transitioned from active duty to the Marine Corps Reserve. He was an
Assistant U.S. Attorney in his civilian capacity and a Reserve appellate
military judge on this court. LtCol J.S. was the subject of the ex parte
communication.
The appellant’s current civilian defense counsel asked the military judge
about LtCol J.S.’s availability in a telephonic R.C.M. 802 conference on 25
November 2014.129 The military judge explained that he contacted the Chief
Trial Judge to inquire of this court whether LtCol J.S. could be made
available “to assist the defense based on his prior representation of Sgt
Hutchins.”130 He went on to confirm that he and the Chief Trial Judge
“agreed to make sure LtCol [J.S.] is available to assist the defense.”131
b. Nature of the communications
Proceeding to the nature of the communication, it was a single telephone
call from the military judge to the Chief Trial Judge. On the record, the
military judge explained that he “contacted [the Chief Trial Judge] to ensure
[the NMCCA] would be sure to wall [LtCol J.S.] off from any Hutchins
matters should the defense desire to consult with him on their own, (a); and
(b), should the case reach that venue again.”132 LtCol J.S. later testified at an
Article 39, UCMJ, session about his knowledge of the ex parte
communications. The then-Chief Judge of this appellate court called him
“and indicated that there would be an order coming out on this case and that
the trial counsel had reached out to the Chief Judge of the [Department of
the] Navy . . . to confirm that [LtCol J.S.] could—the level of [LtCol J.S.’s]
participation, and they had some sort of conversation.”133 LtCol J.S.
understood that he was authorized to “provide information from [his]
previous representation” of the appellant.134 He summarized the scope of this
authority as follows: “So basically I can sort of dump every single bit of
information that I have regarding the site visit . . . it’s a one-way flow of
129 AE C at 40. Details of that R.C.M. 802 conference come from an affidavit by
one of the appellant’s detailed defense counsel, who was also on the conference call.
The appellant submitted the affidavit in support of his motion for the military judge’s
recusal.
130 Id.
131 Id. at 41.
132 Record at 655.
133 Id. at 728.
134 Id.
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communication.” LtCol J.S. understood that the Chief Judge of the
Department of the Navy was the source of this authority, and the then-Chief
Judge of this appellate court conveyed it to LtCol J.S.
c. What the judge did as a result of the ex parte communication
Next we consider what the military judge did as a result of this ex parte
communication. From his written ruling on the appellant’s motion to compel
a site visit, it appears the military judge communicated to the appellant’s
counsel that they could consult with LtCol J.S. regarding his 2007 site visit.
In his Findings of Fact, the military judge concluded that the appellant’s
“previous Defense counsel were afforded a site visit to [Hamdaniyah] to
survey the scene, conduct interviews, and investigate the circumstances
surrounding the event.”135 In a footnote to this finding, the military judge
noted that the appellant’s former civilian defense counsel was
unavailable for consultation due to the filing of an ineffective
assistance of counsel (IAC) claim after the first trial. However,
Lt.Col. [J.S.], a reserve judge at N.M.C.C.A., has been advised
by his supervisors that he may discuss the case with the
Defense and assist them in interpreting any of the information
in the file.136
The military judge also allowed LtCol J.S. to testify for the defense in support
of their efforts to compel a subsequent site visit.
In his motion for recusal of the military judge and again on appeal, the
appellant averred that the military judge’s ex parte communication resulted
in him reaching three “opinions”:
(1) the ineffective assistance of counsel claim against LtCol
[J.S.] and the other members of the original trial defense team
does not give rise to a conflict of interest;
(2) the site visit conducted by LtCol [J.S.] was sufficient for
the defense to recover any desired evidence or witness
testimony; and
(3) LtCol [J.S.] was concurrently an appellate judge and,
without need to consult Sgt Hutchins, a participant in the
defense team; [sic] LtCol [J.S.] could actively assist the defense
interpretation of evidence and strategy discussions under the
protection of attorney-client privilege.137
135 AE CXXV at 3 (footnote omitted).
136 Id., n.5.
137 Appellant’s Brief at 123. See also AE C at 18.
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We address these alleged opinions in turn. First, the appellant alleges
that the military judge relied on the ex parte communication to resolve a
conflict of interest that arguably prevented LtCol J.S. from assisting with the
appellant’s defense team. During an Article 39(a), UCMJ, session to litigate
the appellant’s motion to compel a site visit, the appellant identified two
conflicts of interest affecting LtCol J.S.: his position as a Reserve judge on
this court and the ineffective assistance of counsel claim that extinguished
his attorney-client relationship with the appellant.138 When asked about that
ineffective assistance claim, LtCol [J.S.] disputed suffering a conflict of
interest that prevented him from assisting the appellant’s new defense
counsel. He was able to “provide the information in a narrative sense”
because the appellate issues for which attorney-client relationship was
waived were irrelevant to the site visit.139 The military judge did not
explicitly address LtCol J.S.’s purported conflict of interest on the record, so
we do not know the extent to which he considered the issue, if at all. We find
no merit in the appellant’s claim that LtCol J.S. suffered from a conflict of
interest and thus find nothing to resolve. When our superior court set aside
the findings of the appellant’s first court-martial, his detailed defense
counsel’s effectiveness or lack thereof became moot. As LtCol J.S. commented
in his testimony, his waiver of his attorney-client privilege in the course of
litigation about his effectiveness did not conflict with his ability to relay his
site visit experience to counsel. The military judge’s ex parte communications
could not impact a claim with no merit on its face.
Secondly, the appellant alleges that the military judge’s ex parte
procurement of LtCol J.S.’s assistance allowed him to conclude that the 2007
site visit was “sufficient for the defense to recover any desired evidence or
witness testimony[.]”140 As will be discussed below, in section H, the security
situation on the ground in and around Hamdaniyah made a site visit
essentially impossible for any counsel in 2014 and 2015. Instead the military
judge faced a more academic question about counsels’ equality of opportunity
to obtain witnesses and other evidence in compliance with Article 46, UCMJ.
LtCol J.S.’s availability to the appellant’s defense team was a factor in
evaluating the appellant’s opportunity and access to evidence. But the
appellant was never entitled to “recover[y of] any desired evidence or witness
testimony,” nor did the military judge ever reach that conclusion.
Third and finally, the appellant alleges that he was excluded from the
decision to include LtCol J.S. in his defense team’s “interpretation of evidence
138 Record at 498.
139 Id. at 742.
140 Appellant’s Brief at 123.
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and strategy discussions under the protection of attorney-client privilege.”141
Such a characterization overstates LtCol J.S.’s authorized role in the
appellant’s second defense. Once the appellant’s first court-martial was
forwarded for appellate review, LtCol J.S.’s attorney-client relationship with
the appellant ended.142 LtCol J.S. testified to clear guidance from the then-
Chief Judge of this court that he “cannot get involved in tactical decisions,
strategic decisions, in giving [the appellant’s defense team] theories of
defense . . . .”143 His disclosures to the new defense team were a “one-way
street” in which both he and the new counsel were obligated to protect
attorney-work product from their respective representations of the
appellant.144
Thus we decline to find that the military judge’s ex parte communications
spawned any of these “opinions.”
d. Whether the communications adversely affected a party who has
standing to complain
Turning to the fourth Quintanilla factor, we consider any adverse effect of
the ex parte communication on the appellant. Beyond the three purported
opinions, the appellant alleges that the “‘availability’ of LtCol [J.S.] was a key
basis for the military judge’s denial of the defense request for a site visit.”145
Allegedly, this amounted to apparent bias against the appellant in that “as a
matter of public perception, the appearance is that the military judge’s
independent investigation and ex parte communications were made for the
express purpose of gathering evidence to support a denial of the defense
motion.”146
But the facts again rebut the appellant’s characterization. “[A] reasonable
man knowing all the circumstances” would not reasonably question the
judge’s impartiality. Quintanilla, 56 M.J. at 78. As will be explained in
greater detail below in section H., the security situation in and around
Hamdaniyah, not LtCol J.S.’s availability, precluded a site visit. Even if the
military judge had ordered a site visit, witness testimony cast significant
doubt on its enforceability. The military judge’s ex parte communication
served no other purpose than to facilitate the trial defense team’s access to a
141 Id.
142 Record at 742.
143 Id.
144 Id. at 729-30, 742.
145 Appellant’s Brief at 124 (citation omitted).
146 Id.
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Marine judge advocate who traveled to Hamdaniyah on the appellant’s behalf
in 2007 and was still within the court’s jurisdiction. But by procuring LtCol
J.S.’s assistance, the military judge helped restore the balance required by
Article 46, UCMJ, and thus mitigated concerns raised by the appellant’s
subsequent Motion to Dismiss for Denial of Site Visit, or Alternatively, to
Abate Proceedings Until Such Time As a Site Visit Can be Conducted, which
depended on a violation of Article 46, UCMJ.147
Analyzing the eight Quintanilla factors— (1) the nature of the military
judge’s ex parte communication, (2) the circumstances surrounding it, (3) its
consequences, (4) the adverse effect on the appellant, and (5-8) the
appellant’s timely objection and preservation of the issue at trial—we detect
not a bias against the appellant but an effort to remove obstacles to his access
to evidence.
A reasonable person aware of the military judge’s ex parte
communications, their effect, the appellant’s rationale for challenging those
communications, and the subsequent production of LtCol J.S. would find no
cause to question the military judge’s impartiality. Thus there is no need for
disqualification.
Even in light of the military judge’s brief and entirely verbal bases for his
decisions not to recuse himself from this case, and the resulting diminution of
our deference to his judgment, we still find no abuse of discretion.
F. Abatement for severance of attorney-client relationship
The appellant claims the military judge erred when he refused to abate
the proceedings until the appellant’s attorney-client relationship with his
appellate defense attorney, Maj S.B.K., was restored. The military judge also
declined to order Maj S.B.K’s appointment as the appellant’s individual
military counsel (IMC).
“A military judge’s failure to abate proceedings is reviewed for an abuse of
discretion.” United States v. Simmermacher, 74 M.J. 196, 199 (C.A.A.F. 2015)
(citing United States v. Ivey, 55 M.J. 251, 256 (C.A.A.F. 2001)).
An accused’s right to IMC is not absolute but subject to the discretion of
the CA and a determination of the availability of the requested counsel. See
United States v. Eason, 45 C.M.R. 109, 111 (C.M.A. 1972). “The ruling of a
military judge on an IMC request, including the question whether such a
ruling severed an attorney-client relationship, is a mixed question of fact and
law. Legal conclusions are subject to de novo review, and findings of fact are
reviewed under a clearly erroneous standard.” United States v. Spriggs, 52
M.J. 235, 244 (C.A.A.F. 2000) (citing United States v. White, 48 M.J. 251, 257
147 AE XCVI.
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(C.A.A.F. 1998); S. CHILDRESS & M. DAVIS, 2 FEDERAL STANDARDS OF REVIEW
§ 7.05 at 7-26 to 36 (2d ed. 1992)).
1. IMC
Pursuant to Article 38(b), UCMJ, an accused has the right to be
represented at court-martial “by military counsel of his own selection if that
counsel is reasonably available[.]” Art. 38(b)(3)(B), UCMJ. If reasonably
available, that military counsel may be appointed to the accused’s trial
defense team as an IMC. Reasonable availability is defined by the service
secretary but excludes persons serving, inter alia, as trial counsel or
appellate defense counsel. Art. 38(b)(7), UCMJ; R.C.M. 506(b)(1)(C)-(D). The
Manual of the Judge Advocate General of the Navy, or JAGMAN, implements
Article 38(b)(3)(B), UCMJ, and R.C.M. 506 with regard to counsel in the Navy
and Marine Corps.148 First, counsel must be on active duty to be reasonably
available.149 Then a list of disqualifying criteria significantly limits the pool of
available counsel.150 Those disqualifying criteria include, inter alia,
performance of duties as trial counsel or appellate defense counsel and
permanent assignment to a command outside the Trial Judicial Circuit
where the court-martial will be held or beyond 500 miles from the site of the
court-martial.151
The military judge found—and the record supports—that Maj S.B.K. was
detailed as the appellant’s appellate defense counsel, pursuant to Article 70,
UCMJ, in May 2008.152 In preparation for his second court-martial, the
appellant filed his IMC request for Maj S.B.K. on 8 August 2014.153 By then,
Maj S.B.K. was assigned to a trial counsel billet more than 500 miles from
Camp Pendleton, the site of the appellant’s court-martial. For these reasons,
Maj S.B.K.’s chain of command denied the request on 11 September 2014.
The appellant appealed, but his appeal was denied on 24 September 2014.
Maj S.B.K. had left active duty the previous day and transferred to the
Individual Ready Reserve.
Citing R.C.M. 506(b) and the list of assignments that disqualify counsel
from serving as IMC per se, the military judge concluded that Maj S.B.K. was
148 Judge Advocate General Instruction 5800.7F (JAGMAN) § 0131 (26 Jun 2012).
149 Id. at § 0131b.(4).
150 Id.
151 Id. at § 0131b.(4)(b), (d)(1).
152Appellee’s Response to Court’s Order to Produce of 16 Nov 2017, Ruling on
Defense Motion re: IMC Request for Maj S.B.K. of 5 May 2015 at 2; AE CXI at 2.
153 AE CXI at 8.
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“per se not reasonably available while serving as a trial counsel and then
again when he left active duty shortly thereafter.”154
2. Existing attorney-client relationship
Despite Maj S.B.K.’s nonavailability, the appellant asserted his attorney-
client relationship with Maj S.B.K. and argued denial of the IMC request
would sever that preexisting relationship. R.C.M. 506 provides for exceptions
to availability requirements “when merited by the existence of an attorney-
client relationship regarding matters relating to a charge in question.”
R.C.M. 506(b)(1). But the exceptions do not apply “if the attorney-client
relationship arose solely because the counsel represented the accused on
review under Article 70[.]” R.C.M. 506(b)(1).
Article 70, UCMJ, governs the detail of appellate counsel. Specifically, the
JAG shall appoint “[a]ppellate defense counsel [who] shall represent the
accused before the Court of Criminal Appeals, the Court of Appeals for the
Armed Forces, or the Supreme Court[.]” Art. 70(c), UCMJ. The authority
governing detail of appellate counsel is separate and distinct from Article 27,
UCMJ,155 which mandates the detail of trial counsel and defense counsel “for
each general and special court-martial.” Art. 27(a)(1), UCMJ.
The distinction between representation at courts-martial arising under
Article 27, UCMJ, and representation on appeal arising under Article 70,
UCMJ, appears in the JAGMAN’s relevant definition of an attorney-client
relationship. “For purposes of this section [0131 Standards for Determining
Availability of Requested Individual Military Counsel], an attorney-client
relationship exists between the accused and requested counsel when counsel
and the accused have had a privileged conversation relating to a charge
pending before the proceeding, and counsel has engaged in active pretrial
preparation and strategy with regard to that charge.”156 Among the “[a]ctions
154Appellee’s Response to Court’s Order to Produce of 16 Nov 2017, Ruling on
Defense Motion re: IMC Request for Maj S.B.K. of 5 May 2015 at 8.
155 Article 70, UCMJ, does require that appellate counsel be qualified under
Article 27(b)(1), UCMJ. Qualifications detailed at Article 27(b)(1), UCMJ, include
being a judge advocate, graduation from an accredited law school, membership in a
federal or state bar, and certification as competent to perform duties as trial or
defense counsel by the Judge Advocate General.
156 JAGMAN § 0131b(3) (emphasis added). The JAGMAN definition of attorney-
client relationship continues:
Actions by counsel deemed to constitute active pretrial
preparation and strategy which materially limit the range of options
available to the accused include but are not limited to: advising the
accused to waive or assert a legal right . . .; representing the accused
at a pretrial investigation under Article 32, UCMJ . . . ; submitting
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that, in and of themselves, will not be deemed to constitute ‘active pretrial
preparation and strategy’” is “representing the accused in appellate review
proceedings under Article 70, UCMJ[.]”157 Finally, the JAGMAN references
the JAGINST 5803.1 series158 “prohibiting a counsel from establishing an
attorney-client relationship until properly detailed, assigned, or otherwise
authorized.” Id. at § 0131b.(3).
The military judge concluded that the appellant “provided no evidence to
suggest that Maj. [S.B.K.] engaged in active pretrial preparation and strategy
with regard to the charges now before the trial court—or that he was
authorized to do so under JAGINST 5803.1E.”159 In detailed Findings of Fact,
the military judge described Maj S.B.K.’s representation of the appellant:
zealous advocacy through the overturn of the accused’s
conviction by CAAF on 26 June 2013 including representation
at NMCCA, CAAF, a 2009 Dubay [sic] hearing, a 2010 IRO
hearing, and at the Naval Clemency and Parole Board, among
other actions. [Maj S.B.K.] continued to provide appellate
advocacy for Sgt Hutchins subsequent to the re-referral of
charges on 6 January 2014, co-signing a Writ of Mandamus on
behalf of Sgt. Hutchins in May 2014.160
While the record does not explicitly corroborate each of these acts on behalf of
the appellant, there is also no indication they are clearly erroneous. It is also
unclear the circumstances under which Maj S.B.K. represented the appellant
at the 2009 DuBay hearing or the 2010 Initial Review Officer (IRO) hearing
and whether he was formally detailed to do so. TDC, not appellate counsel,
typically provide representation at those types of hearings. But those
hearings are not typically associated with active pretrial preparation and
strategy. Finally, Article 70, UCMJ, was the authority for Maj S.B.K.’s
representation of the appellant, and the scope of that representation was
evidence for testing or analysis; . . . offering a pretrial agreement on
behalf of the accused; submitting a request for an administrative
discharge in lieu of trial on behalf of the accused; or interviewing
witnesses relative to any charge pending before the proceeding.
Id. at § 0131b.(3)(a).
157 Id. at § 0131b.(3)(b) (emphasis added).
158 JAGINST 5803.1 series governs “Professional Conduct of Attorneys Practicing
Under the Cognizance and Supervision of the Judge Advocate General” including
Marine Corps judge advocates, active duty and Reserve.
Appellee’s Response to Court’s Order to Produce of 16 Nov 2017, Ruling on
159
Defense Motion re: IMC Request for Maj S.B.K. of 5 May 2015 at 8.
160 Id. at 2.
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appellate review and other post-trial matters arising after the release of the
appellant’s original trial defense counsel.
The military judge relied on the distinctions between trial and appellate
advocacy in ruling that the appellant had not demonstrated the kind of
attorney-client relationship with Maj S.B.K. that required restoration at the
trial level. The military judge cited United States v. Kelker, 4 M.J. 323, 325
(C.M.A. 1978), in support of the “separability of the trial and appellate
functions.” As in the case before us, Private Kelker requested assignment of
his appellate defense counsel to his trial defense team for his second court-
martial. Id. at 323-24. Our superior court held that attorney-client
relationships formed pursuant to Article 70, UCMJ, for appellate
representation do not extend to the trial level, even for a rehearing of the
same case. Id. at 325.
Citing Spriggs, supra, extensively, the military judge focused on what
triggers the kind of attorney-client relationship that cannot be severed and
thus compels appointment as an IMC. Establishing such a relationship
requires demonstrating “‘both a bilateral understanding as to the nature of
future representation and active engagement by the attorney in the
preparation and pretrial strategy of the case.’”161 Although absent from the
military judge’s ruling, the JAGMAN explicitly precludes IMC approval
authorities from considering appellate representation as pretrial preparation
and strategy.162
The appellant cites United States v. Morgan, 62 M.J. 631, 635 (N-M. Ct.
Crim. App. 2006), for the proposition that the attorney-client relationship
with appellate defense counsel continues “through remands and retrials,
unless properly excused by the client or other competent authority.”163 For
that reason, we disagree with the military judge’s implication that Maj
S.B.K’s representation of the appellant was complete. In fact, Maj S.B.K.
continues to represent the appellant before this court. But that relationship,
formed under the authority of Article 70, UCMJ, is still limited to
representation before appellate authorities. Despite Maj S.B.K.’s
representation of the appellant at a DuBay hearing and an IRO hearing—
representation normally provided by trial defense counsel—there is no
evidence the statutory authority for the representation changed. Nor did the
161 Id. at 6 (quoting Spriggs, 52 M.J.at 241).
162 JAGMAN at § 0131b.(3)(b).
163 Appellant’s Brief at 130 (citing Morgan, 62 M.J. at 635 (noting that “appellate
counsel . . . join the appellant’s growing defense team. Each attorney remains on that
team until such time as he or she is released by the appellant or a court having
jurisdiction, or is excused by competent authority for good cause shown.”)
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military judge clearly err in finding no evidence that Maj. S.B.K. was
engaged in active pretrial preparation and strategy.
Finding no clearly erroneous findings of fact and no error in the military
judge’s legal conclusion that the appellant and Maj S.B.K. did not share the
kind of attorney-client relationship that demands assignment as an IMC, we
affirm the military judge’s decision not to order Maj S.B.K.’s assignment to
the trial defense team. We also find no abuse of discretion in the military
judge’s denial of the appellant’s request to abate the proceedings.
G. Pretrial punishment in violation of Article 13, UCMJ
The appellant contends that the government violated the Article 13,
UCMJ, prohibition against unlawful pretrial punishment when it subjected
him to unduly harsh pretrial confinement in Iraq and at Camp Pendleton,
reassigned him from a MTU to an administrative billet, and withheld a
Navy-Marine Corps Achievement Medal (NAM) from him.
“The burden is on appellant to establish entitlement to additional
sentence credit because of a violation of Article 13[, UCMJ].” United States v.
Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002) (citing R.C.M. 905(c)(2)). Whether an
appellant is entitled to relief for a violation of Article 13, UCMJ, is a mixed
question of law and fact. Id. (citing United States v. Smith, 53 M.J. 168, 170
(C.A.A.F. 2000); United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F.
1997)). “We will not overturn a military judge’s findings of fact, including a
finding of no intent to punish, unless they are clearly erroneous. We will
review de novo the ultimate question whether an appellant is entitled to
credit for a violation of Article 13.” Id. (citing Smith, 53 M.J. at 170).
Article 13, UCMJ, states that “[n]o person, while being held for trial, may
be subjected to punishment or penalty other than arrest or confinement upon
the charges pending against him, nor shall the arrest or confinement imposed
upon him be any more rigorous than the circumstances required to insure his
presence[.]” In United States v. Fischer, the CAAF interpreted Article 13,
UCMJ, to prohibit “(1) the intentional imposition of punishment on an
accused prior to trial, i.e., illegal pretrial punishment; and (2) pretrial
confinement conditions that are more rigorous than necessary to ensure the
accused’s presence at trial[.]” 61 M.J. 415, 418 (C.A.A.F. 2005) (citing United
States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003); McCarthy, 47 M.J. at 165).
Illegal pretrial punishment “‘entails a purpose or intent to punish an accused
before guilt or innocence has been adjudicated.’” Id. (quoting McCarthy, 47
M.J. at 165). “We apply this standard by examining the intent of detention
officials or by examining whether the purposes served by the restriction or
condition are ‘reasonably related to a legitimate governmental objective.’” Id.
(quoting United States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005)) (citations
omitted). Similarly, we consider whether a condition or term of pretrial
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confinement “‘is imposed for . . . punishment or whether it is but an incident
of some other legitimate governmental purpose.’” United States v. James, 28
M.J. 214, 216 (C.M.A. 1989) (quoting Bell v. Wolfish, 441 U.S. 520, 538
(1979)).
In this case, the appellant filed a motion for “appropriate legal and
injunctive relief for unlawful pretrial punishment”164 which the military
judge denied.165 We will examine the military judge’s findings with regard to
the four types of alleged punishment the appellant has challenged again on
appeal. The military judge correctly placed the burden of demonstrating
violation of Article 13, UCMJ, on the appellant. R.C.M. 905(c)(2); see also
Mosby, 56 M.J. at 310.
1. Pretrial restriction in Iraq
From 11 to 23 May 2006, the appellant was “placed in pretrial restriction
and housed in a climate-controlled Containerized Housing Unit (CHU) with
an escort” in Iraq.166 There has been no dispute that this restriction was
tantamount to confinement, and the appellant received day-for-day
confinement credit for this restriction.167 The Results of Trial from the first
court-martial did not indicate clearly how pretrial confinement credit was
calculated, but the record reflects that the appellant received at least one day
of pretrial confinement credit for each day spent restricted to the CHU in
Iraq.168
This period was also the focus of the CAAF’s opinion in Hutchins, IV, 72
M.J. 294. The government’s failure to facilitate the appellant’s access to an
attorney, despite his request for counsel upon his initial Article 31(b) rights
notification, contributed significantly to the CAAF’s suppression of his
statements to NCIS, reversal of his initial convictions, and his new trial. Id.
at 296-300.
164 AE LXV at 1.
165 AE LXXXVII.
166 Id. at 2.
167 Id. at 6. The military judge attributed the credit to United States v. Allen, 17
M.J. 126 (C.M.A. 1984). Allen entitles an accused to day-to-day sentence credit for
pretrial confinement, but, with one exception, the military judge referred to the
period for which the appellant received the credit as “pre-trial restraint” and
“restriction.” Id.168 AE LXVI at 120; Record at 629.
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At his second court-martial, the appellant moved for additional remedies
for the command’s failure to comply with R.C.M. 305 and his “unduly harsh
pre-trial confinement conditions”169 in Iraq.
R.C.M. 305 prescribes requirements and rules to ensure pretrial
confinement is not unduly rigorous or otherwise in breach of Article 13,
UCMJ.170 R.C.M. 305(j)(2) directs military judges to order administrative
credit under R.C.M. 305(k) “for any pretrial confinement served as a result of
an abuse of discretion or failure to comply with” the provisions affording
members command documentation of probable cause for confinement,
independent review of probable cause, and access to military counsel. R.C.M.
305(k) credit ordered for noncompliance “is to be applied in addition to any
other credit the accused may be entitled as a result of pretrial confinement
served.” R.C.M. 305(k). But the military judge declined to award R.C.M.
305(k) or Article 13, UCMJ, credit for the appellant’s restriction in Iraq
because “the law does not twice rebuke the Government for an after-the-fact
reclassification of restraint absent evidence of other unusually harsh
circumstances not present here.”171
Our superior court has held that “R.C.M. 305 applies to restriction
tantamount to confinement only when the conditions and constraints of that
restriction constitute physical restraint, the essential characteristics of
confinement.” United States v. Rendon, 58 M.J. 221, 224 (C.A.A.F. 2003).
While restriction tantamount to confinement may entitle an accused to day-
for-day confinement credit under Allen, supra, or United States v. Mason, 19
M.J. 274 (C.M.A. 1985), the accused is not entitled to double that
confinement credit under R.C.M. 305(k). Rendon, 58 M.J. at 224. We see no
evidence in the record leading us to disturb the military judge’s implicit
finding that the appellant’s period of restriction did not include physical
restraint and thus did not amount to confinement. Despite the isolated
169 AE LXV at 1.
170 Pretrial confinement requires probable cause, meaning “a reasonable belief
that: (1) [a]n offense triable by court-martial has been committed; (2)[t]he person
confined committed it; and (3) [c]onfinement is required by the circumstances.”
R.C.M. 305(d). Continued confinement requires a documented probable cause
determination made by the commander not more than 72 hours after learning a
member is in confinement. R.C.M. 305(h)(2)(A). A neutral and detached officer shall
review the probable cause determination within seven days of the imposition of
confinement and memorialize his or her factual findings and conclusions. R.C.M.
305(i)(2). At the request of the prisoner, military counsel shall be provided before the
72-hour probable cause determination or the seven-day review, whichever occurs
first. R.C.M. 305(f).
171 AE LXXXVII at 7.
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nature of the appellant’s restriction, the unique circumstances of restriction
in a war zone, and our superior court’s characterizations of the period in
Hutchins, IV, 72 M.J. at 296-97, the appellant has inexplicably offered no
evidence of physical restraint. Therefore, we affirm the military judge’s
decision not to apply R.C.M. 305(k) credit.
Regarding the punitive nature of the restraint and violation of Article 13,
UCMJ, the military judge found that the appellant had not provided the
necessary evidence to demonstrate that “this confinement was either illegal
or punitive in nature.”172 R.C.M. 304(f) prohibits punitive pretrial restraint
such as “punitive duty hours or training, . . . punitive labor, or . . . special
uniforms prescribed only for post-trial prisoners.” The appellant alleged none
of these but argued only that his solitary confinement in Iraq deprived him of
“the ability to communicate with anyone else, including his family or
friends.”173 The government countered by asserting there was
contemporaneous probable cause to believe that the appellant and his squad
members conspired to commit murder—and committed it—and thus it was
necessary to segregate them to prevent further obstruction of justice.174
The military judge concluded that “[g]iven the nature of the charged
offenses and the proximity of the command in the midst of a war zone in a
foreign country, solitary restriction to a CHU was not beyond the pale.”175
Our review of the record does not contradict this finding as to the nature of
the restriction. The military judge correctly cited Mosby in support of his
legal conclusions. 56 M.J. at 310 (denying additional sentence credit for an
Article 13, UCMJ, violation when “[o]ther than introducing evidence that
appellant was placed in solitary confinement based on the charge alone,
appellant has not introduced any evidence of an intent to punish.”) Based on
this record, we conclude that the military judge’s findings are not clearly
erroneous and that the circumstances of the restriction were not punitive. We
affirm the military judge’s decision not to award additional credit or other
remedies pursuant to Article 13, UCMJ.
2. Pretrial confinement at Camp Pendleton
The appellant was redeployed from Iraq to Camp Pendleton and began a
period of pretrial confinement from 24 May 2006 to 3 August 2007. As in
Iraq, he argues his “extreme confinement conditions” were punitive.176
172 Id.
173 AE LXV at 5.
174 AE LXVI at 1.
175 AE LXXXVII at 7.
176 AE LXV at 7.
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Specifically, the appellant alleges he was held in “a sound-proof, solitary-
confinement cell for ten out of the fifteen months” of pretrial confinement and
“was shackled every time he left his cell.”177 He argues the conditions of his
pretrial confinement were not necessary and were intended “to exact
punishment, harassment, and abuse[.]”178
The military judge made the following findings of fact regarding the
appellant’s pretrial confinement at Camp Pendleton. The appellant’s custody
classification on 24 May 2006 was “‘maximum’” based on “the nature of the
allegations against him and an assessment of other factors.”179 The command
complied with R.C.M. 305 by providing the appellant a pretrial confinement
advice letter on 25 May 2006 and conducting a status review with an IRO on
26 May 2006. The IRO’s “comments clearly indicate his view that continued
pretrial confinement was appropriate.”180 About three weeks later, brig
officials cited the appellant’s “‘entirely appropriate’” behavior in downgrading
his custody classification and increasing his privileges.181 The military judge
noted that the appellant’s claim that he was placed in Maximum-[Potentially
Violent and Dangerous] status for 150 days was “expressly contradicted by
evidence of brig records revealing a downgrade from MAX (maximum) to MDI
(medium) after 23 days.”182 Because of “the nature of his charges and
concerns about problems in the brig general population” and ease of access to
frequent family and legal visitors, the appellant remained in Special
Quarters housing.183 The military judge noted that on or about 5 October
2006, the appellant complained to the brig officer about problems he had
encountered with other inmates on the general population mess decks.
Extensive documentation from the Camp Pendleton Base Brig corroborates
the military judge’s findings.
Detailing administrative and safety reasons for the conditions of the
appellant’s custody, the military judge concluded that the “Defense has not
met its burden to show that the conditions of pretrial confinement at the
Camp Pendleton Base Brig were more rigorous than necessary to ensure the
accused’s presence at trial.”184 The military judge found that the high profile
177 Appellant’s Brief at 136 (citation omitted).
178 Id. at 137.
179 AE LXXXVII at 2.
180 Id.
181 Id.
182 Id. at 8, n.14.
183 Id. at 2-3.
184 Id. at 7.
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of the appellant’s case, the number of alleged co-conspirators, and concerns
about the appellant’s presence in the general population were safety concerns
that amounted to legitimate administrative purposes for continued
confinement in Special Quarters housing. He cited Smith, 53 M.J. at 173, in
which the CAAF affirmed a military judge’s determination that (1) “the
Government had not restricted the appellant with an intent to punish prior
to trial” and (2) “that there were legitimate nonpunitive governmental
objectives served by the restrictions placed on appellant and that, therefore,
Article 13 was not violated[.]” Id. at 169.
Although the Smith court analyzed pretrial restriction, not confinement,
id. at 170, our superior court has repeatedly applied the same test to pretrial
confinement. In United States v. Crawford, 62 M.J. 411 (C.A.A.F. 2006), the
CAAF pledged deference to prison officials who adopt and execute “‘policies
and practices that in their judgment are needed to preserve internal order
and discipline and to maintain institutional security.’” Id. at 416 (quoting
Bell, 441 U.S. at 547). In light of confinement officials’ responsibility to
ensure a detainee’s presence for trial and the security of the facility, the
burden was on Crawford to demonstrate that the conditions of his
confinement were “unreasonable or arbitrary[.]” Id. at 414. See also
McCarthy, 47 M.J. at 167 (holding, in the context of maximum custody
confinement, that “[i]f the conditions of pretrial restraint are ‘reasonably
related to a legitimate governmental objective, it does not, without more,
amount to punishment.’”) (quoting James, 28 M.J. at 216) (additional
citations omitted).
The military judge implied that solitary confinement and shackles were
“‘discomforting’ administrative measures reasonably related to the effective
management of the confinement facility” and “‘de minimus’ impositions” and
therefore not punitive.185 However, United States v. Corteguera, 56 M.J. 330(C.A.A.F. 2002), the source of that language, addressed a confinement facility
orientation process requiring pretrial detainees to briefly sing and shout. We
do not equate solitary confinement and shackles with embarrassment.
However, we concur with the military judge that the appellant has failed to
provide evidence his confinement was unduly rigorous. Unlike in King, 61
M.J. at 225, the appellant has not demonstrated that any conditions of his
confinement were “an arbitrary response to the physical limitations” of the
facility. Id. at 228. Instead, the record—especially regular reports from his
brig counselor—reveals considered justifications for his custody
classifications and his segregation from his squad mates and the general
population.
185 Id. at 8 (quoting United States v. Corteguera, 56 M.J. 330, 334 (C.A.A.F.
2002)).
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Finding no clear error in the military judge’s conclusions that the
appellant’s confinement conditions stemmed from legitimate purposes, and,
impliedly, not punitive intent, we concur there was no Article 13, UCMJ,
violation during his pretrial confinement.
3. Transfer from the MTU
The appellant alleges that his reassignment from a marksmanship
instructor position to an administrative billet was arbitrary and the result of
punitive intent.
While his first court-martial progressed through appellate review, the
appellant was in and out of post-trial confinement. After this court set aside
his convictions in Hutchins I, 68 M.J. at 631, the appellant was released from
confinement and returned to duty at Camp Pendleton in June 2010. He was
assigned as an instructor at the Battalion Headquarters MTU. In January
2011, the CAAF reversed Hutchins I and remanded the case for review.
Hutchins II, 69 M.J. at 293. The next month, the appellant was returned to
confinement. In June 2013, the CAAF set aside the appellant’s convictions,
Hutchins IV, 72 M.J. at 300. He was released from confinement again and
returned to Camp Pendleton the next month. He served again as an MTU
instructor.
At some point after the appellant’s return to Camp Pendleton in July
2013, his assignment as an MTU instructor came to the attention of Col M.,
the Officer in Charge of the Camp Pendleton LSSS. Col M. contacted the
appellant’s commanding officer, Col Co., and “relayed his concern about the
‘optics’ of a Marine working on a rifle range who stood accused of killing a
civilian with a rifle.”186 Sometime thereafter, Col Co. transferred the
appellant from the MTU to the S4 Logistics Division, which had repeatedly
failed inspections. “Col [Co.] testified that Col [M.]’s call affected the timing of
this move, but given the [appellant’s] outstanding performance and the
perpetual failings of S4, he ‘probably’ would have moved Sgt. Hutchins there
at some point to shore up the division.”187 He did not consider the
reassignment to be punitive and believed the S4 billet was rated one or two
paygrades above the appellant’s paygrade of E-5.
When Col Co. retired in July 2014, Col Cr. relieved him as the appellant’s
commanding officer. A month later, the appellant was reassigned to the
MTU. Conflicting evidence was presented as to Col Cr.’s awareness of the
change, and the military judge refrained from making findings of fact on the
matter. Col M. contacted Col Cr. to express his continuing concerns about the
186 Id. at 4.
187 Id. at 4, n.9.
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“‘optics’” of the assignment, and the appellant was returned to S4.188 “Col
[Cr.] disavowed an ulterior motive for the transfer and praised Sgt. Hutchins’
work.”189 He rated the pay grade of the S4 billet as higher than E-5 and
possibly as high as a junior officer.
Substantial testimony from the colonels and members of their staff
supports these findings of fact from the military judge.
Again, the military judge found that the appellant had not met his burden
to show that his reassignment from MTU to S4 was punitive. He applied the
two-part Smith test again. 53 M.J. at 169, 72-73. The military judge found no
evidence that assignment to S4 was considered punitive, and he held that
assignment outside of one’s military occupational specialty was not, “ipso
facto,” punitive.190 He questioned the propriety of the LSSS Officer in Charge
intervening in the appellant’s duties but detected “no evidence of either
improper motive or an improper result.”191
We find no reason to question the military judge’s findings and ultimate
conclusion as to the appellant’s reassignment from MTU to S4. The appellant
urges us to infer punitive intent from the “chief prosecutor’s” intervention,
inconclusive evidence as to why the appellant was briefly returned to the
MTU, and his assertion that there was no legitimate reason for him to leave
the MTU. This is not evidence of punitive intent, nor does it successfully
rebut the nonpunitive reasons the colonels cited for their advice and
decisions.
4. Withdrawal of nomination for a NAM
Finally, the appellant avers that a prosecutor, acting with punitive intent,
dissuaded the appellant’s commanding officer from awarding him a proposed
impact award and thus punished him.
The military judge found that the appellant made an immediate, positive
impact at both MTU and S4 and that praise for his performance was both
universal and effusive. Col Co. remembered reviewing a recommendation
that the appellant receive a NAM as an impact award for his tenure at MTU.
But Col Co. demurred in favor of a letter of continuity because the appellant
had been on board less than a year. Col Co. also advocated for the appellant
to receive a Combat Action Ribbon.
188 Id. at 5.
189 Id.
190 Id. at 9.
191 Id.
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The appellant asserts that Col Co. withheld his NAM because a
prosecutor, Maj S., warned it “would not ‘look good’ given that he was
charged with murder.”192 As support, the appellant cited a deposition of the
Battalion Operations Officer, Maj B., who nominated the appellant for the
award. Maj B did not testify before the military judge, but a transcript of his
deposition was attached to the appellant’s motion. According to the deposition
transcript, Maj B. remembered being present for a telephone call between Col
Co. and Maj S. during which Maj S. balked at awarding a NAM to someone
charged with murder because it wouldn’t look good. Col Co. then decided to
leave the appellant’s proposed NAM citation in the awards system and “‘wait
until everything clears up.’”193 He expected similar recognition for the
appellant from S4 and, according to Maj B., said, “‘[j]ust hold off to all his
recognitions. He’s not denied but he’s not approved.’”194 Col Co. testified that
he frequently consulted with Maj S. on other cases but did not remember
discussing the appellant with him.
While there is some disagreement between Col Co. and Maj B., it does not
prompt us to disregard the military judge’s findings of fact as clearly
erroneous. Maj S.’s concerns about the appearance of awarding a murder
suspect a NAM are consistent with Col M.’s concerns about the optics of
assigning a murder suspect to train Marines in marksmanship. Col Co.
testified, “I think you should write [the appellant] up for a letter of continuity
because we can’t have a Marine getting three awards to reach a senior’s ears,
just because we moved him around.”195 This does not directly contradict Maj
B.’s memory of Col Co. deciding to hold the appellant’s recognitions from
MTU, S4, and others until his court-martial.
The military judge again found that the defense had not met its burden to
show that Col Co.’s decision not to approve the appellant’s NAM was
punitive. He cited Col Co.’s testimony that a NAM for less than a year of
performance was premature. While he did not explicitly cite the Smith test in
the context of this alleged punishment, he concluded there was no evidence of
punishment to overcome the evidence that a legitimate, alternative purpose
motivated the decision not to award the NAM to the appellant.
None of the military judge’s findings as to the lack of punitive intent and
the existence of legitimate, nonpunitive reasons regarding the appellant’s
restriction in Iraq, pretrial confinement at Camp Pendleton, reassignment
192 Appellant’s Brief at 143.
193 AE LXV at 90.
194 Id.
195 Record at 612.
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from MTU to S4, or impact award is clearly erroneous. Thus we affirm his
conclusions that the appellant was not subject to pretrial punishment in
violation of Article 13, UCMJ.
H. Denial of trial defense counsel’s site visit to Iraq
The appellant alleges that the military judge erred in denying his TDC’s
request for a site visit to Iraq, depriving him of equal access to evidence, due
process, and effective representation.
We review a military judge’s discovery rulings for an abuse of discretion.
United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015).
1. Equal access under Article 46, UCMJ
Article 46, UCMJ, affords trial counsel, trial defense counsel, and the
court-martial “equal opportunity to obtain witnesses and other evidence[.]” It
is implemented in R.C.M. 701 and R.C.M. 703. R.C.M. 701 ensures “[e]ach
party shall have adequate opportunity to prepare its case and equal
opportunity to interview witnesses and inspect evidence. . . . No party may
unreasonably impede the access of another party to a witness or evidence.”
R.C.M. 701(e). The government must make evidence in the “possession,
custody, or control of military authorities” available if it is “material to the
preparation of the defense[.]” R.C.M. 701(a)(2). The standard for production
of evidence not in a military authority’s possession, custody, or control is
higher. Parties to a court-martial are “entitled to production of evidence that
is relevant and necessary.” R.C.M. 703(f)(1).
When moving “for discovery under R.C.M. 701 or for production of
witnesses or evidence[,]” the burden is on the moving party to prove, by a
preponderance of the evidence, “any factual issue the resolution of which is
necessary to decide a motion[.]” R.C.M. 905(b)(4), (c).
a. Motion to compel
The appellant filed a motion to compel after the CA denied his TDC’s
request for a site visit to Hamdaniyah, Iraq.196 He sought government-funded
and facilitated travel and access to Hamdaniyah so his trial defense counsel
could inspect the site of the alleged offenses and locate and interview
prospective witnesses.
At an Article 39(a), UCMJ, session, the deputy intelligence officer at
Marine Forces Central testified about conditions on the ground near
Hamdaniyah. Beginning in June 2014, 80-90% of surrounding Al Anbar
Province had fallen under the control of the Islamic State of Iraq and the
Levant, and nearby Abu Ghraib was “one of the more contested violent areas
196 AE LXIX.
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in Al Anbar[.]”197 The intelligence officer opined that it would be “very, very
difficult, if not impossible” to send a team of investigators or attorneys to the
general area.198 Testimony about the current condition of the homes of SG
and the Iraqi man killed on 26 April 2006 was inconclusive. Finally, the
intelligence officer understood that the Department of State, not the
Department of Defense, had the final authority for such travel to Iraq, and he
was doubtful of their approval given the danger and lack of Iraqi
governmental control of Hamdaniyah.199
During argument at the Article 39(a), UCMJ, session, TDC proposed, as
an alternative, a limitation on the government’s admission of evidence
obtained in Iraq. In rebuttal, TC asserted that his team had given the
appellant’s trial defense team “everything [they had] . . . that was collected or
produced in Iraq[.]”200 TDC did not dispute the availability of the
government’s evidence but questioned the adequacy of the NCIS
investigation and the evidence it yielded. Challenging the objectivity of the
NCIS investigation, TDC speculated that the cache of evidence and exhibits
“may have been very different had defense counsel been on the ground[.]”201
When the military judge queried TDC about what evidence he hoped to find
on-site after eight years, TDC responded, “[i]nterviews.”202 Posed with the
inability to compel production of any Iraqi witnesses, the TDC replied, “we
ask questions and then we open up doors, and we go down this path or that
path, and that’s what—sometimes you run into some dead ends and
sometimes you run into leads.”203
In his initial written ruling denying the site visit, the military judge made
findings of fact, all supported by the record and not clearly erroneous.
Conducting a de novo review of his application of the law, we concur with his
application and conclusions. The military judge held the appellant to the
burden of proving, by a preponderance of the evidence, that evidence and
witnesses beyond government control in Iraq were relevant and necessary at
trial. He concluded that the appellant offered nothing more than speculation
as to the value of personally inspecting the site or the ability to locate
witnesses to the events. In a footnote to his written ruling, the military judge
197 Record at 489-90.
198 Id. at 490.
199 Id. at 491-494.
200 Id. at 501.
201 Id. at 502.
202 Id. at 496.
203 Id. at 497.
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noted that the appellant had failed to distinguish his request for a site visit
from a “pro forma” request, offering nothing to demonstrate “the necessity of
a site visit in this case.”204 The appellant failed to prove by a preponderance of
the evidence that a visit to Hamdaniyah, eight and a half war-torn years
after the incident, would yield evidence relevant and necessary to his defense.
Article 46, UCMJ, does not obviate an accused’s requirement to
demonstrate the necessity of evidence or assistance beyond what is already at
hand. See R.C.M. 703(f)(1) (production of evidence); R.C.M. 703(d)
(employment of expert witnesses). Military courts have rejected the notion
that the mere prospect of finding relevant and necessary evidence satisfies
the requirement for showing relevance and necessity. See United States v.
Washington, 46 M.J. 477, 479 (C.A.A.F. 1997) (finding that the appellant had
failed to demonstrate the necessity of investigative assistance when, inter
alia, “the defense appears to be on a ‘fishing expedition’ as to defense
witnesses who ‘may exist who can refute the charges’ or ‘may be helpful.’”);
United States v. Kinsler, 24 M.J. 855, 856 (A.C.M.R. 1987) (noting that “[a]
court need not provide for investigative services for a mere ‘fishing
expedition’”) (citing United States v. Shultz, 431 F.2d 907, 911 (8th Cir.
1970)).
The military judge also addressed trial defense counsel’s alternative
remedy of suppressing government evidence collected in Iraq. He found that
“[b]oth sides have equal access to the evidence available at trial and the
Government is not calling any Iraqi witnesses on the merits.”205 The military
judge initiated arrangements for the appellant’s former detailed defense
counsel, LtCol J.S., then a Reserve appellate judge on this court, to be made
available for privileged consultation with the appellant’s current defense
team. LtCol J.S. had made a brief visit to Hamdaniyah in January 2007 and
had seen the IED crater and interviewed one Iraqi witness. With the
appellant’s access to all of the evidence and to detailed military counsel from
the first trial, the military judge concluded there was no violation of Article
46, UCMJ, in this case, in 2007 or at the time of the motion.
We find no abuse of discretion in the military judge’s initial two rulings.
b. Motion to dismiss
In a subsequent Motion to Dismiss for Denial of Site Visit or,
Alternatively, to Abate Proceedings Until Such Time as a Site Visit Can Be
Conducted, the appellant argued that without a new site visit, he would
receive neither due process nor effective representation. The motion raised
204 AE CXXV at 6, n.7.
205 Id. at 6.
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the inadequacy of the appellant’s first trial defense counsel’s site visit to Iraq
in 2007. The military judge issued a second written ruling, again denying a
site visit as well as the motion to dismiss or abate proceedings.206
We again find no clear error in the military judge’s findings of fact. The
military judge adopted his statement of law from his previous ruling and
ruled that the appellant had still failed to meet his burden of demonstrating
that a new site visit would “recover relevant and/or admissible evidence
regarding the offenses allegedly committed there nine years ago.”207
Regarding the appellant’s arguments about the insufficiency of his former
trial defense counsel’s site visit in 2007, the military judge found “the
Defense must be considered at least somewhat complicit given the short
notice they provided in the face of the operational and security constraints in
the region.”208
The military judge did not abuse his discretion in finding no Article 46,
UCMJ, violation in original trial defense counsel’s 2007 site visit. The right of
access to evidence—or sources of evidence—is not unlimited. There is usually
no obligation to arrange interviews between trial defense counsel and
witnesses, but the government may not hinder them. United States v.
Killebrew, 9 M.J. 154, 160 (C.M.A. 1980). The government may not
“unreasonably impede the access of another party to a witness or evidence.”
R.C.M. 701(3). “‘[A]bsent special circumstances, the right to a pretrial
interview—guaranteed to [the defense] under the Manual [for Courts-
Martial] and the Code—encompasses the right to an interview free from
insistence by the Government upon the presence of its representative.’”
Killebrew, 9 M.J. at 159 (quoting United States v. Enloe, 35 C.M.R. 228, 232
(C.M.A. 1965)) (alterations in original). A witness cannot be compelled to
speak to TDC, as long as the government did not bring about the refusal. Id.The court may issue subpoenas to compel the attendance of civilian witnesses
at trial, but “[f]oreign nationals in a foreign country are not subject to
subpoena.” R.C.M. 703(e)(2) and Discussion. Subpoenas are available to
produce evidence not in government custody, but “a party is not entitled to
the production of evidence which is destroyed, lost, or otherwise not subject to
compulsory process.” R.C.M. 703(f)(2). See also R.C.M. 703(f)(4)(B).
We agree the appellant did not demonstrate, by a preponderance of the
evidence, that the government’s handling of the original TDC’s 2007 site visit
to Iraq amounted to a deprivation of equal access in violation of Article 46.
The evidence suggests that multiple factors conspired to limit the scope and
206 AE CXXVIII at 4.
207 Id. at 3.
208 Id. at 3-4.
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effectiveness of that site visit—from legitimate security concerns to TDC’s
own tactics. We decline to find that impediments arising from safety and
security measures taken in 2007 were unreasonable and thus in violation of
R.C.M. 701(e).
We find no abuse of discretion in this second pair of rulings.
Our superior court has interpreted Article 46, UCMJ, to be a statement of
congressional intent to prevent the government from marshaling its
resources to gain an unfair advantage over an accused and thus to ensure “a
more even playing field.” United States v. Warner, 62 M.J. 114, 120 (C.A.A.F.
2005). But the parity contemplated in Article 46, UCMJ, does not entitle an
accused to a blank check. Id. at 118 (citing United States v. Calhoun, 49 M.J.
485, 487-88 (C.A.A.F. 1998) (noting that an accused is not entitled to the
particular expert consultant or witness requested).
Assuming, arguendo, a violation of Article 46, UCMJ, the appellant must
demonstrate material prejudice. See Adens, 56 M.J. at 732 (holding that
“violations of a [service member’s] Article 46, UCMJ, rights that do not
amount to constitutional error under Brady and its progeny must still be
tested under the material prejudice standard of Article 59(a), UCMJ.”).
Article 59(a), UCMJ, states that “[a] finding or sentence of a court-martial
may not be held incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused.” Without
specifying the “substantial prejudice” to him, the appellant attributes it to
defense counsel being “compelled . . . to rely on the observations and filtered
crime scene investigative findings of NCIS and other government agents[.]”209
The appellant, not the NCIS agents, was at the crime scene on the morning of
26 April 2006. His TDC were able to exploit the weaknesses in the chain of
custody of the decedent’s body and the appellant’s alleged weapon. The
government’s case rested largely on the testimony of the appellant’s squad
mates—not evidence collected in Iraq or from Iraqi witnesses. The appellant
has failed to articulate how his lost opportunity to conduct a site visit
contributed to the members’ findings and thus materially prejudiced him.
We turn now to whether the appellant’s inability to conduct a site visit
and independent on-site investigation and interviews deprived him of due
process.
2. Due process
The appellant asserts a due process right to “the opportunity to conduct a
meaningful and full investigation of the underlying conduct, which
necessarily includes the opportunity to inspect the scene of the alleged
209 Appellant’s Brief at 148.
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crime.”210 According to the appellant, “[t]he military judge’s denial [of a site
visit] limited the defense in its ability to inspect for evidence perhaps missed,
overlooked or omitted by the government and infringed on due process
rights.”211
The Supreme Court has “long interpreted” the Due Process Clause of the
Fourteenth Amendment “to require that criminal defendants be afforded a
meaningful opportunity to present a complete defense.” Cal. v. Trombetta,
467 U.S. 479, 485 (1984).212 “To safeguard that right, the Court has developed
‘what might loosely be called the area of constitutionally guaranteed access to
evidence.’” Id. (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867
(1982)). “Less clear from [the Court’s] access-to-evidence cases is the extent to
which the Due Process Clause imposes on the government the additional
responsibility of guaranteeing criminal defendants access to exculpatory
evidence beyond the government’s possession.” Id. at 486. “Whenever
potentially exculpatory evidence is permanently lost, courts face the
treacherous task of divining the import of materials whose contents are
unknown and, very often, disputed.” Id. (citation omitted).
Due process does not demand government prescience. The Court has
distinguished the government’s obligation to recognize and preserve
exculpatory evidence from an obligation to predict the exculpatory value of
evidence or a source of evidence. A line of Supreme Court cases addressed the
application of due process to “potentially exculpatory evidence” the
government lost or destroyed, depriving the accused of the opportunity to
extract something exonerative from independent investigation of that
evidence. See Illinois v. Fisher, 540 U.S. 544, 548-49 (2004) (a plastic bag
containing a white powdery substance forensics tests revealed to be cocaine);
Ariz. v. Youngblood, 488 U.S. 51, 52 (1988) (semen samples from the victim’s
body and clothing); Trombetta, 467 U.S. at 481 (breath sample of a suspected
drunken driver). The Trombetta Court found no due process violation when
the government acted “‘in good faith and in accord with their normal
practice[,]’” and the loss or destruction of evidence was not attributable to a
“conscious effort to suppress exculpatory evidence.” Id. at 488 (quoting
Killian v. United States, 368 U.S. 231, 242 (1961)). The constitutional duty to
210 Id.211 Id.212 We acknowledge that the Fourteenth Amendment does not govern accused at
courts-martial. But our superior court has found the same right to present a complete
defense in the Fifth Amendment, applying Trombetta to courts-martial. United States
v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008); see also United States v. Bess, 75 M.J. 70, 74
n.3 (C.A.A.F. 2016) (finding no reason the right to present a complete defense would
be any narrower under the Fifth Amendment than the Fourteenth Amendment).
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preserve evidence applies to material evidence, which “must both possess an
exculpatory value that was apparent before the evidence was destroyed, and
be of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.” Id. at 489. See also United
States v. Garries, 22 M.J. 288, 292 (C.M.A. 1986); United States v. Kern, 22
M.J. 49, 51 (C.M.A. 1996). The Supreme Court subsequently confirmed that a
due process violation requires evidence of “bad faith” on the part of the
government when “potentially useful evidence”—but not “material
exculpatory evidence”—is lost or destroyed. Fisher, 540 U.S. at 548-49 (citing
Youngblood, 488 U.S.at 57). An accused cannot claim a due process right to
evidence, or a source of evidence, with only the potential to yield something
exculpatory, unless the government has lost or destroyed that evidence in bad
faith.
Although the appellant frames this AOE as a denial of discovery, it is
more accurately a denial of opportunity. He does not accuse the trial counsel
or the government of withholding a piece of material exculpatory evidence.
Instead, the government has allegedly withheld funding and support for an
independent investigation that might have uncovered something exculpatory.
At best, hypothetical evidence is potentially useful; therefore, the appellant
must attribute its loss or destruction to bad faith on the part of the
government. Id. Evidence of bad faith is missing here. We found no abuse of
discretion in the military judge’s decision to deny a site visit to Hamdaniyah.
The appellant failed to demonstrate the required necessity of the site visit.
Nor did we find an abuse of discretion in the military judge’s conclusion that
the government did not violate discovery obligations during the original trial
defense counsel’s site visit to Hamdaniyah in January 2007. The appellant’s
lost opportunity, attributable to circumstances beyond the U.S. government’s
control, does not equate to a lack of due process.
3. Effective representation
Invoking United States v. Strickland, 466 U.S. 668 (1984), the appellant
implies that counsel must conduct a site visit and independent investigation
to be competent.
Legal representation is deemed ineffective under Strickland when the
appellant can demonstrate that “(1) his counsel’s performance fell below an
objective standard of reasonableness; and (2) the counsel’s deficient
performance gives rise to a ‘reasonable probability’ that the result of the
proceeding would have been different without counsel’s unprofessional
errors.” United States v. Akbar, 74 M.J. 364, 371 (C.A.A.F. 2015) (quoting
Strickland, 466 U.S. at 688, 694). “Trial defense counsel have ‘a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.’” Id. at 379 (quoting Strickland, 466
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U.S. at 691) (emphasis added). “The Supreme Court has ‘rejected the notion
that the same [type and breadth of] investigation will be required in every
case.’” Id. at 380 (quoting Cullen v. Pinholster, 563 U.S. 170, 195 (2011)
(additional citation omitted) (alteration in original)).
The appellant overreaches when he claims that the Army Court of
Military Review “intimated” that “‘failure to visit a crime scene ipso facto
contributes to deficient performance of trial’” in United States v. Boone, 39
M.J. 541, 544 (A.C.M.R. 1994).213 The court adopted this concession for sake
of argument before summarily dismissing it in Boone’s case. Id. Although
Boone alleged his TDC’s “failure to visit the crime scenes . . . led to a serious
factual error in [his] closing argument[,]” the court found “there [was] no
obvious prejudice to the appellant in [Boone’s] case.” Id. Nor has this court
found “deficiencies in defense counsel’s performance under the Strickland
standards” when counsel “was denied the ability to view the crime scene by
the Staff Judge Advocate and the military judge” and “had extreme difficulty
in interviewing the witnesses[.]” United States v. Ryan, 2007 CCA LEXIS
111, *11-*12, unpublished op. (N-M. Ct. Crim. App. 2007), rev’d. as to
sentence, 65 M.J. 328 (C.A.A.F. 2007) (summary disposition). In a case similar
to the one before us, civilian defense counsel declined to pursue a site visit to
the scene of an alleged murder in Afghanistan because “the area became so
kinetic that U.S. forces withdrew from there altogether.” United States v.
Lorance, 2017 CCA LEXIS 429, *19 (A. Ct. Crim. App. 27 Jun 2017), rev.
denied, __ M.J. __, 2017 CAAF LEXIS 1165 (C.A.A.F. 19 Dec 2017). The
Army Court of Criminal Appeals found no merit in Lorance’s claim of
ineffective assistance of counsel in light of the defense team’s overall
performance and the lack of prejudice in the face of “overwhelming evidence
against [him].” Id. at *18-*19. In the case before us, conditions on the ground
in Hamdaniyah made trial defense counsel’s request to travel there to
investigate unreasonable.
Not only does the appellant fail to demonstrate that denial of a site visit
robbed him of TDC performance within an objective standard of
reasonableness, he fails to articulate how a site visit would have altered the
outcome of his court-martial. His assertion of prejudice is detached from the
facts of his case and is almost circular; instead he claims that denial of a site
visit robbed him of his rights to a fair trial and due process. As discussed
previously, we disagree.
Instead, we find that the appellant benefited from zealous, competent
representation throughout his second court-martial. His TDC effectively
challenged the evidence brought from Iraq, and there were no Iraqi witnesses
213 Appellant’s Brief at 146.
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to impeach. The strength of the government’s case lay in the testimony of the
Marines and Navy corpsmen present in Hamdaniyah on the morning of 26
April 2006. Nothing in Iraq could have better equipped TDC to challenge
their testimony.
The appellant does not point to a piece of evidence or witness whose
testimony would have altered the outcome of his trial. His assertion of
prejudice is speculative. Not only has he failed to demonstrate that “his
counsel’s performance fell below an objective standard of reasonableness,” he
has also failed to demonstrate that his “counsel’s performance gives rise to a
‘reasonable probability’ that the result of the proceeding would have been
different without counsel’s unprofessional errors.” Akbar, 74 M.J. at 371.
Without either, there is no ineffective assistance of counsel.
I. Admissibility of identification on autopsy report
The appellant claims that the military judge abused his discretion when
he admitted an autopsy report whose relevance depended upon impermissible
testimonial hearsay from Iraqi citizens who identified the body.
This AOE presents us with hearsay within hearsay—alleged testimonial
hearsay appearing in a routine professional report prepared by and informing
the testimony of an expert witness. Whether the imbedded evidence was
testimonial hearsay is a question of law we review de novo. United States v.
Katso, 74 M.J. 273, 278 (C.A.A.F. 2015) (citing United States v. Tearman, 72
M.J. 54, 58 (C.A.A.F. 2013)). We review the military judge’s decision to admit
evidence that contains testimonial hearsay for an abuse of discretion,
“‘considering the evidence in the light most favorable to the prevailing
party.’” Katso, 74 M.J. at 278-79 (quoting United States v. Reister, 44 M.J.
409, 413 (C.A.A.F. 1996)).
1. Testimonial hearsay
First we examine the appellant’s allegation of testimonial hearsay.
“[A]dmission of ‘testimonial statements of a witness who did not appear at
trial’” violates the Sixth Amendment’s Confrontation Clause unless the
witness is “‘unavailable to testify, and the [accused] had had a prior
opportunity for cross-examination.’” Id. at 278 (quoting Crawford, 541 U.S. at
53-54); U.S. CONST., amend VI. In Crawford, the Supreme Court defined
testimony as “typically ‘[a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact.’ . . . An accuser who makes a
formal statement to government officers bears testimony in a sense that a
person who makes a casual remark to an acquaintance does not.” 541 U.S. at
51 (quoting 2 N. WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE (1828)) (alteration in original). Our superior court has
characterized a statement as testimonial “‘if made under circumstances
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which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.’” Katso, 74 M.J. at 278
(quoting United States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011)
(additional citations omitted). There are also three factors to guide this
objective, but contextual, analysis, often referred to as Rankin factors:
(1) the statement was elicited by or made in response to law
enforcement or prosecutorial inquiry;
(2) the statement involved more than a routine and
objective cataloging of unambiguous factual matters; and
(3) the primary purpose for making, or eliciting, the
statement was the production of evidence with an eye toward
trial.
United States v. Squire, 72 M.J. 285, 288 (C.A.A.F. 2013) (citing United
States v. Gardinier, 65 M.J. 60, 65 (C.A.A.F. 2007)); United States v. Rankin,
64 M.J. 348, 352 (C.A.A.F. 2007)).
The appellant asserts that the identification of the body exhumed and
autopsied in the course of investigating this case constitutes testimonial
hearsay. The lead NCIS agent, Special Agent (SA) J.C., testified about his
efforts to exhume the body of the man shot in the IED crater on 26 April
2006. The victim’s family led a convoy of military personnel, including SA
J.C., to the burial site, but an IED detonated under one of the vehicles in the
convoy en route to the site. SA J.C. never reached the burial site that day. At
SA J.C.’s request, the appellant’s company commander visited the victim’s
family and obtained GPS coordinates for the burial site. The company
commander testified during the second court-martial but was not asked to
confirm that he collected GPS coordinates of the burial site from the family at
SA J.C.’s request. Following the GPS coordinates, a second convoy traveled to
the site, and SA J.C. led the exhumation. SA J.C. testified that the victim’s
brother accompanied him to the burial site, pointed to the grave, “and at one
point, he started digging in the grave site.”214 No Iraqi witness was subject to
cross-examination or made available for either trial of the appellant.
Applying the Rankin factors to this information, we find it constitutes
testimonial hearsay. 72 M.J. at 288. First, the victim’s family revealed the
burial site location at the request of NCIS, a law enforcement entity
supporting the Navy and Marine Corps. Second, the information involved the
recent death of a family member. The family attributed the death to
American service members and had pressed a complaint with the military
leadership in the area. “[T]he statement involved more than a routine and
214 Record at 1515.
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objective cataloging of unambiguous factual matters[.]” Id. Finally, NCIS
requested the information after securing an order to exhume the Iraqi
citizen’s remains with the intent to transport them to the United States for
an autopsy. During cross-examination, SA J.C. acknowledged the difficulty in
obtaining the exhumation order. As NCIS sought the autopsy in furtherance
of its investigation of serious criminal offenses, presentation of the resulting
evidence at court-martial was a possible, if not likely and intended, outcome.
2. Admissibility of the autopsy report
Having found there was testimonial hearsay in identification of the body
autopsied, we now turn to whether it rendered the medical examiner’s report
and testimony inadmissible. TDC objected to admission of the autopsy report
based on hearsay and lack of relevance. With regard to hearsay, the military
judge ruled from the bench that the report satisfied the hearsay exception for
records of regularly conducted activities under MIL. R. EVID. 803(6). As to
relevance, TDC protested, “[t]hey haven’t even identified the body yet, sir, if
this is even the person that they should be doing [the] autopsy report on.” 215
The military judge acknowledged, “that’s certainly a link in the chain that
the government—they got that problem.”216 But then the military judge
posited that “wounds consistent to what witnesses have testified to being
inflicted on [the victim]” were circumstantial evidence of identity and thus
relevant and admissible.217
TDC did not explicitly invoke testimonial hearsay and the Confrontation
Clause in his objection to the autopsy report. Nevertheless, the references to
links in the chain on the record reveal the parties’ cognizance of flaws in the
body’s chain of custody. Testimonial hearsay formed not just a weak link but
the chain’s questionable origin. To determine whether the testimonial
hearsay should have resulted in exclusion of this report from evidence, we
examine the significance of that testimonial hearsay to the report and
testimony about it.
When testimonial hearsay is presented to the court through an expert
witness, we determine whether that expert testimony violates the
Confrontation Clause by asking:
First, did the expert’s testimony rely in some way on out-of-
court statements that were themselves testimonial?
215 Id. at 1814.
216 Id.
217 Id.
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Second, if so, was the expert’s testimony nonetheless
admissible because he reached his own conclusions based on
knowledge of the underlying data and facts, such that the
expert himself, not the out-of-court declarant, was the ‘witness
against [the appellant]’ under the Sixth Amendment?
Katso, 74 M.J. at 279 (citing Crawford, 541 U.S. at 44, 51-52) (additional
citations omitted). Put another way, we ask whether the expert witness “had
sufficient personal knowledge to reach an independent conclusion as to the
object of his testimony and his expert opinion.” Id. at 280 (citing United
States v. Blazier (Blazier II), 69 M.J. 218, 224-25 (C.A.A.F. 2010)).
Navy CAPT S.L., the Deputy Medical Examiner at the Armed Forces
Medical Examiner at Dover Air Force Base, Delaware, conducted the
autopsy, authored the report, and authenticated it while testifying at the
appellant’s second court-martial. After the NCIS-directed exhumation of the
body identified as the shooting victim in this case, Master-at-Arms Second
Class (MA2) I.D. accepted custody of the body from “mortuary affairs”218 on 6
June 2006 and escorted it from Camp Fallujah, Iraq, to Dover. An NCIS
agent met MA2 ID when he landed at Dover and took custody of the body
from him. On 8 June 2006, CAPT SL, performed the autopsy.219 His report of
6 July 2006 includes a “[p]resumptive identification . . . established by
accompanying documentation and photographs.”220 CAPT S.L. testified that
NCIS typically provided a history on a decedent “[t]o give us some
background information. . . . You have to get something specific to focus your
attention on.”221 Based on the information provided by NCIS, the decedent
was “believed to be” H.I.A., a 52-year-old Iraqi civilian who died in
Hamdaniyah, Iraq on 26 April 2006.222 For the circumstances of death,
“[i]nvestigation reports that United States Military Personnel detained this
Iraqi civilian, bound him with flexible cuffs, and shot him multiple times at
different ranges of fire.”223
The remaining 14 pages of the report detailed CAPT S.L.’s external and
internal examinations of the body and its injuries, his diagnosis, and his
opinion. Descriptions of the gunshot wounds to the body comprised the
majority of the report and supported CAPT S.L.’s diagnosis of multiple
218 Id. at 1826.
219 PE 88 at 1, 15.
220 Id. at 1.
221 Record at 1861.
222 PE 88 at 1, Record at 1887.
223 PE 88 at 1.
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gunshot wounds as the cause of death. Responding to the information that
the shooting victim was bound, CAPT S.L. noted that “[d]issection into the
skin and soft tissues of the wrists and ankles revealed no hemorrhage or
other injury, which might be expected if the individual was bound.”224 But the
use of flexible cuffs and the advanced state of composition prevented him
from excluding the possibility that he was bound. CAPT S.L. also commented
on findings from which he could infer that the man “had some degree of
difficulty with ambulation.”225 Nowhere in the report did CAPT S.L. appear to
rely on any information from NCIS to form his opinion.
Qualified as an expert witness in forensic pathology, CAPT S.L.
authenticated and explained his report, including the process of performing
an autopsy and his specific findings in this case. TC asked CAPT S.L. about
the trajectory of gunshot wounds, the existence of stippling and its evidence
of the range of the shot, and his interpretation of metal fragments recovered
from the body. CAPT S.L.’s testimony relied almost entirely on the
application of his expertise to observations he made during an autopsy he
performed.226 He relied on the purported identity of the body, the
circumstances surrounding the death, or anything else flowing from the
testimonial hearsay only for the nexus they created between the body and
this case. Presented with background details such as the possible use of
flexible handcuffs, the purported victim’s reported limp, and the location of
gunshot wounds, he indicated whether his autopsy findings were consistent,
or inconsistent, with such facts. Ultimately the relevance of the report, not
the report’s findings themselves, relied on testimonial hearsay.
With some reliance on the testimonial hearsay, we proceed to the second
Katso factor—whether the expert’s testimony was nonetheless admissible
because he reached his own conclusions based on knowledge of the
underlying data and facts, and his opinions, not those of an out-of-court
declarant, were subject to the cross-examination required by the
Confrontation Clause. 74 M.J. at 279. While testimonial hearsay formed the
basis of the relevance of CAPT S.L.’s report and testimony to this case, the
conclusions in the report and testimony suggest no reliance on that
testimonial hearsay. CAPT S.L. carefully documented, in writing and on the
stand, the scientific processes he followed and the data he relied on to
support his conclusions. The transparency of the scientific process supports
224 Id. at 15.
225 Id.
226 See Bullcoming v. New Mexico, 564 U.S. 647, 661 (2011) (holding that the
Confrontation Clause requires that prosecutors call the analysts who write the
reports to introduce them into evidence).
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our conclusion that testimonial hearsay was incidental, not foundational, to
CAPT S.L.’s report, testimony, and opinion. Furthermore, CAPT S.L.
acknowledged early in cross-examination that he had not independently
identified the body he autopsied through DNA, dental records, fingerprints,
or other scientific methods. But other than reporting the background
information NCIS provided, CAPT S.L. did not opine on the identity of the
body in his report or his testimony. We conclude CAPT S.L. demonstrated
sufficient personal knowledge, education, and expertise to reach the
independent conclusions of his report and testimony. Id. at 280.
In his closing argument, TC minimized the significance of the identity of
the body in the autopsy report and asked members “to consider the
circumstantial evidence. Look at the wound patterns.”227 TC encouraged the
members to compare the wounds CAPT S.L. highlighted on the autopsy
report to the photograph of the man killed in the IED crater on 26 April 2006.
This was circumstantial evidence from which the members could identify the
body as that of the man killed in the IED crater on 26 April 2006. Even
without the direct evidence of a fully documented chain of custody for the
body, circumstantial evidence in the report tying the body to the victim in
this court-martial was sufficient to render the report relevant. See United
States v. Hurt, 27 C.M.R. 3, 31 (C.M.A. 1958) (citing United States v. Walker,
6 U.S.C.M.A. 158 (C.M.A. 1955) (holding that circumstantial evidence can be
as dispositive as direct evidence).
The problems in the body’s chain of custody and the reliance on
testimonial hearsay to link the body to this case affected the weight of the
autopsy report, not its admissibility. Testimonial hearsay and identity were
not so imbedded in the expert’s report and testimony as to violate the
appellant’s right of confrontation and render the report and subsequent
testimony inadmissible. We find no abuse of discretion in the military judge’s
finding that the report and testimony were admissible.
J. Failure to Grant a Mistrial
The appellant contends that the military judge abused his discretion
when he declined to grant a mistrial after the lead NCIS agent testified
before members that the appellant “invoked at the interview.”228
“We will not reverse a military judge’s determination on a mistrial absent
clear evidence of an abuse of discretion.” Ashby, 68 M.J. at 122 (citing United
States v. Rushatz, 31 M.J. 450, 456 (C.M.A. 1990)).
227 Record at 2306.
228 Id. at 1417.
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A military judge “may, as a matter of discretion, declare a mistrial when
such action is manifestly necessary in the interest of justice because of
circumstances arising during the proceedings which cast substantial doubt
upon the fairness of the proceedings.” R.C.M. 915(a). But “a mistrial is an
unusual and disfavored remedy. It should be applied only as a last resort to
protect the guarantee for a fair trial.” United States v. Diaz, 59 M.J. 79, 90
(C.A.A.F. 2003). “A curative instruction is the preferred remedy, and the
granting of a mistrial is an extreme remedy which should only be done when
‘inadmissible matters so prejudicial that a curative instruction would be
inadequate are brought to the attention of the members.’” Diaz, 59 M.J. at 92
(quoting R.C.M. 915(a), Discussion).
Inadmissible matters include mention that an accused exercised his or
her rights under the Fifth Amendment to the Constitution or Article 31(b),
UCMJ, by remaining silent, refusing to answer a question, requesting
counsel, or requesting to terminate an interview. MIL. R. EVID. 301(f)(2). The
erroneous presentation of such evidence to members implicates constitutional
rights; therefore, to be harmless, “‘the court must be able to declare a belief
that it was harmless beyond a reasonable doubt.’” United States v. Moran, 65
M.J. 178, 187 (C.A.A.F. 2007) (quoting Chapman v. California, 386 U.S. 18,
24 (1967)). The inadmissible evidence must not have contributed to the
verdict. Id. To determine an error does not contribute to the verdict is “‘to
find that error unimportant in relation to everything else the jury considered
on the issue in question, as revealed in the record.’” Id. (quoting Yates v.
Evatt, 500 U.S. 391, 403 (1991), overruled on other grounds by Estelle v.
McGuire, 502 U.S. 62, 72 n.4 (1991)).
1. “[H]e invoked”
In this case, the inadmissible evidence of the appellant’s invocation of his
right to remain silent came from the lead investigator, SA J.C. SA J.C. was
on the stand authenticating physical evidence in the government’s case. The
prosecutor asked him if he confronted the appellant with the appellant’s
after-action report about the shooting, and SA J.C. responded:
Well, I don’t remember specifically showing that to him at
that time. But like I said, eventually after a time into the
interview, it was time to start playing some of our cards that
we had developed through some of the other interviews
through some of the other squad members from earlier in the
day. And at which time, he invoked at the interview.229
229 Id.95
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TDC objected immediately, requested a mistrial, and protested, “[h]e’s
going into Sergeant Hutchins’s Constitutional right to remain silent.”230 At a
brief Article 39(a), UCMJ, session immediately following the comments and
objection, the military judge decided to give the members a curative
instruction right away but to postpone litigation of the motion for a mistrial
until the next morning. As soon as the members reassembled in the
courtroom, the military judge admonished them to disregard any invocation
of rights by the appellant231 and then confirmed with them as a group that
they understood.
The following day, after hearing arguments from both parties, the
military judge adopted TDC’s proposed curative instruction232 and agreed to
conduct individual voir dire of the members. We must now determine
whether—in light of the requirement that the members’ exposure to the
inadmissible evidence be harmless beyond a reasonable doubt—the military
judge abused his discretion in declining to declare a mistrial. He briefly made
findings of fact from the bench:
[W]hat I found here is that this was a [sic] isolated reference to
a singular invocation of rights by the witness. It was extremely
brief. There are no details about the rights invoked or the
offense or offenses to which the rights were invoked. We
immediately called a[n Article] 39(a) [session]. I immediately
gave instructions to disregard. I find that the inadmissible
invocation testimony didn’t have any direct bearing on the
230 Id.231 The military judge told the members:
Members, you heard some testimony that suggesting, perhaps,
that the accused in this case may have invoked some rights when
being questioned by this witness. That’s a completely improper
discussion point for us here. It’s irrelevant to your consideration, and
it’s never, ever, to be held against anyone accused of a crime that they
invoked, whether they invoked, whether they didn’t invoke.
It’s not to be considered by you for any reason whatsoever. That
testimony is stricken, and it’s to be completely disregard [sic] by you
for any purpose whatsoever. It will not be held against Sergeant
Hutchins in any manner whatsoever. If you all understand that,
could you please indicate by raising your hand.
That’s an affirmative response from all the members.
Id. at 1419-20.
232 AE CXLVIII; Record at 1450-51.
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testimony prior to it. It was toward the end and was unrelated
to the other issues in any substantive manner.233
The military judge did not articulate the legal standard he followed, but
he referred counsel to two cases: United States v. Sidwell, 51 M.J. 262(C.A.A.F 1999) and United States v. Boore, 2014 CCA LEXIS 609,
unpublished op. (A.F. Ct. Crim. App. 21 Aug 2014) (per curiam).
2. Sidwell test
In Sidwell, the CAAF analyzed testimony from a law enforcement agent
who uttered, “[s]ubsequent to [Sidwell] invoking his rights, he made – ” before
being interrupted by trial defense counsel’s objection. 51 M.J. at 263
(emphasis in original). To assess the possible prejudice resulting from this
erroneous admission and gauge whether it was, instead, harmless beyond a
reasonable doubt, the CAAF considered three things: the nature of the
comment, the curative instruction given, and the “effect of the error on the
other prosecution and defense evidence presented in the case.” Id. at 265
(citing United States v. Riley, 47 M.J. 276, 279-80 (C.A.A.F. 1997)). The CAAF
concluded that, “viewed in its entirety, [the error] did not have great
potential to prejudice appellant.” Id. In support of their conclusion, the CAAF
cited the isolated nature of the reference, its extreme brevity, the immediacy
with which the military judge called an Article 39(a), UCMJ, session, the
prompt instruction to the members to disregard the evidence, and trial
counsel’s silence about Sidwell’s invocation in argument. Id.The military judge’s factual findings mirrored those on which the CAAF
relied, in part, in Sidwell. The record supports his characterization of SA
J.C.’s comment as isolated and extremely brief. Aside from the trial counsel’s
question about the appellant’s after-action report and SA J.C.’s reference to
the other squad members’ interviews, this statement was bereft of context.
Trial defense counsel’s objection, the Article 39(a), UCMJ, session, and the
initial curative instruction came in quick succession. TC then asked SA J.C.
one more brief question about the appellant’s interview and his after-action
report before returning to the authentication of physical evidence.
The next day, the military judge adopted the appellant’s proposed
curative instruction and read it to members before TDC began his cross-
examination of SA J.C. While the appellant does not object to the content of
his own curative instruction, we nevertheless note that it closely hews to the
curative instruction in United States v. Garrett, 24 M.J. 413, 417 (C.M.A.
1987), which the CAAF has endorsed. See Sidwell, 51 M.J. at 265; United
States v. Whitney, 55 M.J. 413, 416 (C.A.A.F. 2001). After reminding the
233 Record at 1435.
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members that they all enjoyed the “absolute and moral right to exercise their
constitutional privileges,” the military judge echoed the Garrett instruction in
stating:
The only thing that matters in this case is that Sergeant
Hutchins always has a constitutional right to exercise his legal
prerogative and no adverse result may obtain from his exercise
of those constitutional rights. You may not infer guilt, nor may
you infer any other fact based on Sergeant Hutchins’ proper
exercise of his constitutional rights.234
The military judge then conducted individual voir dire of the members,
confirming their ability to follow the instruction. “Absent evidence to the
contrary, court members are presumed to comply with the military judge’s
instructions.” United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F. 2003)
(citations omitted). There is no evidence the members disregarded the
military judge’s instructions.
Finally, we consider the impact of the error on the subsequent
presentation of evidence. The appellant does not allege any impact on the rest
of the case. Suppression of the appellant’s statements to NCIS and the
related reversal of his first court-martial had already transformed the
appellant’s statements to SA J.C. into a third rail for the government. The
prosecution focused some attention on the appellant’s after-action report,
which was the subject of the only false official statement charge against the
appellant. But the appellant’s interviews with NCIS were otherwise absent
from the government’s case. Nor did the trial counsel allude to the appellant’s
invocation in his closing argument.
Errant mention of the invocation did not affect the trial defense team’s
presentation of evidence either. Recognizing that the strongest evidence
against the appellant lay in the testimony of his squad mates, TDC focused
on attacking their interrogations and testimony at the first court-martial.
According to the defense theory, the appellant’s guilt was an NCIS
fabrication imposed on the frightened and coerced members of the appellant’s
squad. SA J.C. had not confronted the appellant with a truth he could not
refute. SA J.C. had confronted the appellant with a concocted version of
events. The appellant’s decision to remain silent did not matter.
Instead of pointing to where the error manifested elsewhere in the trial,
the appellant alleges substantial prejudice by framing SA J.C.’s brief
statement as improper lie detector testimony. According to the appellant,
members were left with the impression that SA J.C. “determined Sgt
234 Id. at 1451.
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Hutchins was lying during the initial portion of the interrogation, so then he
confronted Sgt Hutchins with the overwhelming evidence of guilt—the
‘cards’—, and that caused Sgt Hutchins to opt for silence because he could not
explain it away.”235
We do not find that argument persuasive. The members acquitted the
appellant of the sole specification of false official statement for submitting his
after-action report. This acquittal indicates that their findings of guilty did
not rely on their assessments of the appellant’s credibility. Nor do we believe
their findings relied on SA J.C.’s assessment of his credibility. Without the
context of the appellant’s interrogations, SA J.C.’s comment came in a
vacuum and simply did not carry the weight the defense alleges. SA J.C. was
not an expert or other authoritative witness on whom members might unduly
rely for his insight. Cf Diaz, 59 M.J. at 93 (concluding that a curative
instruction was inadequate to correct the expert witness’s testimony that
Diaz murdered the victim).
Secondly, the appellant argues that the members would interpret the
invocation in conjunction with their knowledge of a prior trial set aside for
some technicality and assume only someone guilty would face retrial. This
argument requires us to assume the members disregarded the military
judge’s clear instruction about everything from the presumption of innocence
and the burden of proof to inferring guilt from the act of invocation. Without
any evidence to support such an assumption, we decline to do so.
We find no clear error in the military judge’s finding that the reference to
invocation was so brief and isolated as to be effectively cured by the
instructions he promptly gave. Notably, those curative instructions were
consistent with curative instructions the CAAF has favorably endorsed under
similar circumstances. See Sidwell, 51 M.J. at 265. We conclude that the
military judge did not abuse his discretion in denying the appellant’s motion
for a mistrial.
K. Cumulative error
The appellant urges us to set aside the findings and sentence based on the
cumulative effect of the errors in this case.
“The cumulative effect of all plain errors and preserved errors is reviewed
de novo.” United States v. Pope, 69 M.J. 328, 335 (C.A.A.F. 2011). When the
accumulation of errors deprived the appellant of a fair trial, Article 59(a),
UCMJ, compels us to reverse it. United States v. Banks, 36 M.J. 150, 171
(C.M.A. 1992).
235 Appellant’s Brief at 161.
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Despite the military judge’s failure to consider the appellant’s proffered
acquittal of conspiring to kill anyone other than S.G., we ultimately found no
error in the admission of the evidence of a conspiracy to commit Plans B and
C.
We found only one error in the course of this trial—NCIS SA J.C.’s
reference to the appellant’s invocation of his right to remain silent. As
previously discussed in section J., not one but two curative instructions
sufficiently addressed any risk of prejudice from the members’ brief exposure
to evidence the appellant invoked his right to remain silent.
These two errors, even in aggregate, did not deprive the appellant of a fair
trial, and Article 59(a), UCMJ, does not require reversal. Further, we decline
the appellant’s invitation to set aside the findings and sentence under Article
66(c).236
L. Sentence appropriateness
The appellant argues that his sentence “was excessive and
disproportionate,” particularly in light of his squad members’ and co-
conspirators’ sentences.
Article 66(c), UCMJ, requires us to approve a court-martial sentence only
if we find it “correct in law and fact and [determine], on the basis of the entire
record, [that it] should be approved.” “The power to review a case for sentence
appropriateness, which reflects the unique history and attributes of the
military justice system, includes but is not limited to considerations of
uniformity and evenhandedness of sentencing decisions.” United States v.
Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (citing United States v. Lacy, 50
M.J. 286, 287-88 (C.A.A.F. 1999)) (additional citation omitted). Uniformity in
sentencing is typically subsumed in the discretionary assessment of
appropriateness encompassed in our Article 66, UCMJ, review authority. But
in certain circumstances, sentence disparity can rise to a question of law.
1. Sentence disparity
Assessing sentence appropriateness by comparison to other cases has long
been disfavored, except in specific circumstances. See United States v.
Ballard, 20 M.J. 282, 283 (C.M.A. 1985) (“It is well settled that, except in
those rare instances in which sentence appropriateness can be fairly
determined only by reference to disparate sentences adjudged in closely
related cases, such as those of accomplices, sentence appropriateness should
be determined without reference to or comparison with the sentences
received by other offenders.” (citation omitted)). The burden falls on the
appellant to demonstrate those exceptional circumstances: (1) the cases the
236 Id. at 163-64.
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appellant cites for comparison are “‘closely related’ to his or her case” and (2)
“the sentences are ‘highly disparate.’” Lacy, 50 M.J. at 288 (internal citations
omitted in original). If the appellant succeeds on both prongs, then the
burden shifts to the government to “show that there is a rational basis for the
disparity.” Id.; see also United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R.
1994) (noting that Article 66, UCMJ, authorizes reduction of “widely
disparate dispositions or sentences” between “closely related” cases when
“unsupported by good and cogent reasons”).
Cases may be “closely related” by virtue of “coactors involved in a common
crime, servicemembers involved in a common or parallel scheme, or some
other direct nexus between the servicemembers whose sentences are sought
to be compared[.]” Lacy, 50 M.J. at 288. See also Kelly, 40 M.J. at 570
(defining “closely related” cases as those that “involve offenses that are
similar in both nature and seriousness or which arise from a common scheme
or design”). The appellant and his seven squad mates were accused of being
party to the same conspiracy. The charges referred against all of them arose
from the same course of events. We need not belabor our determination that
the appellant’s case is closely related to his squad mates’ and co-conspirators’
cases. Thus we turn to whether the outcomes were highly disparate.
On appeal, the appellant alleges that his sentence is highly disparate
because none of his squad mates served more than 18 months of confinement,
and only two left the Marine Corps with bad-conduct discharges.237 To meet
his burden, the appellant submits his squad mates’ “final approved
sentences” and details their convictions, punitive discharges where
applicable, and confinement served.238 However, we gauge disparity among
closely related cases based on adjudged sentences, not approved sentences.
See United States v. Roach, 69 M.J. 17, 21 (C.A.A.F. 2010) (clarifying that
Courts of Criminal Appeals compare the adjudged sentences of closely related
cases because “there are several intervening and independent factors
between trial and appeal—including discretionary grants of clemency and
limits from pretrial agreements—that might properly create the disparity in
what are otherwise closely related cases”). Disparity is also relative to the
maximum punishment an accused faces. Lacy, 50 M.J. at 289.
The appellant was found guilty of conspiracy to commit larceny, false
official statements, murder, and obstruction of justice, unpremeditated
murder, and larceny of a shovel and an AK-47 assault rifle and faced a
dishonorable discharge and life imprisonment.239 He was sentenced to a bad-
237 Id. at 166.
238 Id. at 165-66.
239 AE CXCIII.
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conduct discharge and 2,627 days’ confinement, which equated to time
served.240 Military judges awarded all five of the most junior members of the
appellant’s squad dishonorable discharges and sentences to confinement
ranging from five to 14 years.241 Only PFC Jodka received a shorter sentence
of confinement than the appellant. With the exception of LCpl Pennington,
the junior squad members pleaded guilty to less serious charges and faced far
less than confinement for life. Only LCpl Pennington pleaded guilty to
conspiracy to commit murder, and he was awarded 14 years’ confinement.
Pursuant to pretrial agreements, the CA significantly reduced their terms of
confinement and disapproved their punitive discharges. Any disparity
between the appellant’s sentence and his junior squad members’ adjudged
sentences lay in the relative leniency he received. Perhaps for this reason, the
appellant asks us to limit the pool of closely related cases to Cpl Thomas and
Cpl Magincalda. But he cites no authority for his self-serving selection of
comparables.
Both Cpl Thomas and Cpl Magincalda pleaded not guilty to all charges
before panels with enlisted representation but were convicted of conspiracy to
commit murder and other less serious charges.242 Members sentenced Cpl
Thomas to a bad-conduct discharge and reduction to pay grade E-1.243 Cpl
Magincalda was awarded 448 days’ confinement (time served) and reduction
to pay grade E-1.
Assuming, arguendo, we disregard the sentences military judges handed
down and find the appellant’s sentence to be highly disparate among
members’ sentences, we look at whether the government has offered “a
rational basis for disparity.” Lacy, 50 M.J. at 288. The government argues
that the appellant’s position as squad leader and highest ranking member of
the conspiracy is the rational basis for the disparity. Citing squad member
testimony, the government asserts that the appellant
first raised the topic and hatched the scheme to commit
murder, . . . asked each junior Marine and Sailor to agree to
engage in the plot, . . . gave the order to fire, . . . [and] held two
meetings with the squad to encourage them to “stick to the
story.” In short, Appellant was the mastermind of this plot—
from inception, to firing the fatal shots into the Victim’s face as
240 AE CXCVII.
241 Staff Judge Advocate’s Recommendation of 18 Sep 2015, Enclosures (4)–(8).
242 Id., Enclosures (9) and (10).
243 Id., Enclosure (9).
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he gurgled his last breathes [sic], to orchestrating the cover-
up.244
The record supports the appellant’s leadership role in the formation and
execution of the conspiracy and lacks any evidence that one of the more
combat-experienced corporals superseded him. While we do not find the
appellant’s sentence to be highly disparate, the presence of a rational basis
and good and cogent reasons for a more severe sentence for the appellant
effectively rebuts the appellant’s claim of a highly disparate sentence among
closely related cases. See e.g., United States v. Fee, 50 M.J. 290, 291-92
(C.A.A.F. 1999) (upholding this court’s affirmation of allegedly highly
disparate sentences awarded to a wife and husband based on the
identification of “a rational basis for the differences in the sentences”).
Thus we are left with the more generalized assessment of the
appropriateness of the appellant’s sentence.
2. Sentence appropriateness
Article 66, UCMJ, obliges us to evaluate the appellant’s sentence
independently for appropriateness. See United States v. Baier, 60 M.J. 382,
384-85 (C.A.A.F. 2005). We review sentence appropriateness de novo. United
States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
“Sentence appropriateness involves the judicial function of assuring that
justice is done and that the accused gets the punishment he deserves.” Healy,
26 M.J. at 395. This requires our “‘individualized consideration’ of the
particular accused ‘on the basis of the nature and seriousness of the offense
and the character of the offender.’” United States v. Snelling, 14 M.J. 267, 268
(C.M.A. 1988) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)). In making this assessment, we analyze the record as a whole.
Healy, 26 M.J. at 395. Notwithstanding our significant discretion to
determine appropriateness, we may not engage in acts of clemency, which is
the prerogative of the CA. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F.
2010).
As the appellant requests, we may consider approved as well as adjudged
sentences in companion cases when assessing sentence appropriateness. See
Roach, 69 M.J. at 21 (“In contrast, when the CCA (Courts of Criminal
Appeals) is exercising its power over sentence appropriateness generally, it
may consider both adjudged and approved sentences.”). The CA in this case
negotiated pretrial agreements with the five junior squad members and
granted clemency to LCpl Pennington, greatly reducing their sentences. But
even Article 66, UCMJ, does not grant CCAs the same unfettered discretion
244 Answer on Behalf of Appellee of 20 Dec 2016 at 150-51 (citations omitted).
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CAs enjoyed under Article 60, UCMJ, or command prerogative. See Nerad, 69
M.J. at 145. “While the CCA clearly has the authority to disapprove part or
all of the sentence and findings, nothing suggests that Congress intended to
provide the CCAs with unfettered discretion to do so for any reason, for no
reason, or on equitable grounds[.]” Id. Uniformity of sentence is but one
consideration when evaluating appropriateness,245 and equity is not a proper
basis for disapproving a sentence.
Considering the entire record, there is nothing excessive or
disproportionate about a sentence to a bad-conduct discharge and less than
eight years’ confinement for the murder of the unknown Iraqi man in this
case. The appellant’s widespread reputation as a charismatic and effective
leader of Marines and his compelling account of his confinement following his
first court-martial earned him significant extenuation and mitigation and
spared him a dishonorable discharge and a return to confinement. Further
reduction of his sentence would not be an act of justice but of mercy, or
perhaps equity, and beyond our authority under Article 66, UCMJ. See id.
M. Legal and factual sufficiency
Finally, the appellant alleges that the case against him was legally and
factually insufficient.
We review the legal and factual sufficiency of evidence de novo. Art. 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test for the legal sufficiency of evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could
have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324 (C.M.A. 1987) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). In resolving questions of legal sufficiency, “we are
bound to draw every reasonable inference from the evidence of record in favor
of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)
(citations omitted).
“For factual sufficiency, the test is whether, after weighing the evidence
in the record of trial and making allowances for not having personally
observed the witnesses, the members of the [appellate court] are themselves
convinced of the accused’s guilt beyond a reasonable doubt.” Turner, 25 M.J.
at 325. “Such a review involves a fresh, impartial look at the evidence, giving
no deference to the decision of the trial court on factual sufficiency beyond the
admonition in Article 66(c), UCMJ, to take into account the fact that the trial
245 See Snelling, 14 M.J. at 268 (“However proper it may be for the convening
authority and [Courts of Criminal Appeals] to consider sentence comparison as an
aspect of sentence appropriateness, it is only one of many aspects of that
consideration.”) (citations omitted).
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court saw and heard the witnesses.” Washington, 57 M.J. at 399. “By
‘reasonable doubt’ is not intended a fanciful or ingenious doubt or conjecture,
but an honest, conscientious doubt suggested by the material evidence or lack
of it in this case. . . . The proof must be such as to exclude not every
hypothesis or possibility of innocence, but every fair and rational hypothesis
except that of guilt.” United States v. Loving, 41 M.J. 213, 281 (C.A.A.F.
1994).
The remarkably detailed and consistent testimony of the five squad
members provided overwhelming evidence of the appellant’s guilt, covering
all elements of the offenses of which he was convicted. Although we were
unable to personally observe the squad members testify at the first and
second courts-martial, the minute details that brought their depictions to life,
including specifics with no real bearing on the offenses, conveyed their
credibility. Details varied depending on the role each member played—
providing security, participating in the initial planning discussion, stepping
off with the snatch team, or remaining behind. But the squad members
corroborated each other, and their narratives wove together to form a
complete and clear account of the night’s events.
The appellant challenges his squad mates’ testimony as a fabrication
forced upon them during coercive interrogations. TDC accused Hospitalman
Second Class (HM2) S., the platoon’s other Navy corpsman and a member of
the Quick Reaction Force that responded to the scene minutes after the
shooting, of framing his close friend and mentor, HM3 Bacos, the appellant
and the other members of the squad for murder. According to the appellant,
HM2 S. is the source of the elaborate conspiracy to kill S.G. or someone close
to him. Although HM2 S. admitted to later fabricating a threatening note in
order to escape the squad he had implicated and their platoon, no convincing
motive for such a large-scale fiction as this conspiracy ever came to light.
Instead, HM3 Bacos’s testimony foreshadowed the crisis of conscience that
prompted him to confide in HM2 S., who later reported those confidences to
NCIS.
According to the appellant, multiple NCIS agents then forced HM3 Bacos
to adopt HM2 S.’s statement and forced the other members of the squad to
adopt HM3 Bacos’s statement. Again, the appellant offers no plausible motive
for an entire team of investigators to strong-arm him and five other members
of his squad into parroting the statement of a non-participant. Nor does he
credibly explain how a relatively brief interview between NCIS agents and
HM2 S. evolved into the robust testimony before us. The conspicuously
uniform affidavits from HM3 Bacos, LCpl Pennington, LCpl Shumate, and
PFC Jodka alleging coercive interrogations and resulting perjury are
insufficient to raise reasonable doubt, even in light of our superior court’s
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suppression of the appellant’s confession. The overwhelming weight of the
testimony of the appellant’s co-conspirators also renders the autopsy,
physical evidence collected, and the testimony of lead SA J.C., who did little
more than authenticate the evidence, inconsequential.
Not only do we find the evidence legally sufficient, but we also find it
factually sufficient.
III. CONCLUSION
The findings and sentence are affirmed.
Chief Judge GLASER-ALLEN and Senior Judge HUTCHISON concur.
For the Court
R.H. TROIDL
Clerk of Court
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