United States v. Dundon ( 2015 )

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman First Class SHANE M. DUNDON
United States Air Force
ACM 38436
27 February 2015
Sentence adjudged 2 July 2013 by GCM convened at Malmstrom Air Force
Base, Montana. Military Judge: Grant L. Kratz.
Approved Sentence: Dishonorable discharge, confinement for 36 months,
forfeiture of all pay and allowances, and reduction to E-1.
Appellate Counsel for the Appellant: Captain Jeffrey A. Davis.
Appellate Counsel for the United States: Lieutenant Colonel C. Taylor
Smith; Captain Richard J. Schrider; and Gerald R. Bruce, Esquire.
Before
HECKER, MITCHELL, and WEBER
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under Air Force Rule of Practice and Procedure 18.4.
HECKER, Senior Judge:
Consistent with his pleas, the appellant was convicted at a general court-martial of
sexual assault and sodomy with a child over the age of 12 but under the age of 16, in
violation of Articles 120b and 125, UCMJ, 10 U.S.C. §§ 920b, 925. Officer and enlisted
members sentenced him to a dishonorable discharge, confinement for 36 months,
forfeiture of all pay and allowances and reduction to E-1. The convening authority
approved the sentence as adjudged.
On appeal, the appellant argues, pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), (1) his waiver of an unlawful command influence motion
was unknowing and involuntary, and (2) the military judge abused his discretion when he
did not allow the appellant to introduce evidence of sex offender registration during
sentencing. We disagree and affirm.1
Background
While home on leave, the 19 year-old appellant met in person with a 14 year-old
girl after previously communicating with her through a social networking website.
During these communications, the child told the appellant her true age, and this fact was
confirmed for the appellant by a mutual friend. Nonetheless, the appellant asked to “hang
out” with the child when he was home on leave, and the two agreed to tell her parents the
appellant was a senior in high school.
After meeting her parents, the appellant left with the child in his father’s vehicle.
He asked her if she knew a place they could stop and “park,” and the couple ended up in
a parking lot several miles from her home. Once there, the appellant removed their
clothing, digitally penetrated her and engaged in sexual intercourse twice, as well as oral
and anal sodomy. After the child told her parents about this incident, the appellant was
interviewed by military law enforcement and admitted to, and later pled guilty to, the
sexual conduct.
Voir Dire and Challenges to Panel
The venire panel for the appellant’s case included twelve prospective members.
During group voir dire, trial defense counsel asked the panel a variety of questions about
their knowledge of certain sexual assault cases that had occurred on base or had been
reported in the media and whether they had heard about the views of military or civilian
leadership on the handling of these types of cases. The defense also explored the panel’s
knowledge of a sexual assault prevention all-call briefing that occurred the week prior to
trial. Nine of the venire members had attended that briefing, where the wing commander
and staff judge advocate spoke about sexual assault in the military environment.2
Defense counsel asked further questions about the all-call during individual voir dire, as
discussed in pertinent part below.
1
Although our resolution of this case ultimately favors the Government, consideration of the case for certification
by the Judge Advocate General under Article 67(a)(2) would appear to be particularly appropriate in view of (1) the
potential inconsistency between the Court of Appeals’ precedents on waiver, adjudicative unlawful command
influence, and member challenges; and (2) the importance of clear guidance to military courts and the service
members who appear before them. See United States v. Fagan, 59 M.J. 238, 241 (C.A.A.F. 2004) (noting a service
court can recommend the Judge Advocate General send the case to the Court of Appeals); see also United States v.
Schoof, 37 M.J. 96, 99 (C.M.A. 1993) (noting that an appellant can request that the Judge Advocate General send his
case to the Court of Appeals for automatic review).
2
Four of these nine venire members were eventually removed for cause for reasons unrelated to the all-call
briefing. A fifth was removed following a peremptory challenge by the defense, as discussed further in this opinion.
2 ACM 38436
Lieutenant Colonel (Lt Col) MG recalled the wing commander saying the
Air Force has “zero-tolerance for sexual assaults,” 99% of the base population were
“good people” but “a very small amount” are “wolves . . . clothed in sheep coats,” which
Lt Col MG took to be a reference to sexual predators. Lt Col MG believed these
references related to adult-on-adult sexual offenses. He also recalled the wing
commander saying if one of his daughters was sexually assaulted, he would “kill” the
perpetrator. Lt Col MG also recalled the staff judge advocate saying sex offenders are
excluded from society and live underneath overpasses. Lt Col MG stated he heard
nothing at the briefing that led him to believe he needed to act in a particular way at the
court-martial, and that he would “absolutely” make his own decision following the
military judge’s instructions, regardless of the wing commander’s personal feelings about
how he would react if his own child was harmed.
Another member, Staff Sergeant [SSgt] JO, thought the wing commander’s
briefing had referenced the wing members’ duty as Airmen to “eliminate [predators] if
we could” because they have “no place in the Air Force. They’re not supposed to be here
and it’s our duty to pinpoint [sic] them out so that way they can get out.” He recalled the
commander saying that 99% of the people are doing their best and 1% are not doing what
they should be and are like wolves in sheep’s clothing that pollute the population. He
also recalled the commander saying that if anyone sexually assaulted his daughter, he
would want to react outside “the confines of the legal system” but would allow the justice
system to handle the issue. SSgt JO also said he was aware of the Air Force Chief of
Staff’s “policy of eliminating [sexual assault] in all the ranks.” In response to a question
from trial defense counsel, SSgt JO indicated he “could not consider not assessing a
punitive discharge” based on the offenses but then agreed he could consider that option as
one of a range of punishments if so instructed by the military judge. SSgt JO also
indicated he did not feel pressured by the “all-call” briefing or ordered to behave in a
certain way while serving as a member on the court-martial panel and would follow his
own judgment in the case.
After individual voir dire was completed, trial defense counsel indicated he was
raising both an unlawful command influence motion and a challenge for cause against
these two panel members, based on the comments made by the wing commander at the
all-call briefing. The military judge expressed frustration that the defense was belatedly
raising the unlawful command influence issue when trial defense counsel had “enough
information to have a basis for [it]” prior to trial. Trial defense counsel indicated he had
not raised the issue previously because he did not know if the members had attended the
all-call or heard the comments. Now that voir dire was completed, trial defense counsel
believed these two panel members were affected by unlawful command influence.3
Noting that an unlawful command influence motion is not directed at panel members but
3
At this point, five of the remaining venire members had attended the all-call briefing. The defense did not
challenge three of those members.
3 ACM 38436
at the “heart of the case,” the military judge expressed concern that the defense had not
raised the motion in order to keep his pretrial agreement.4
The military judge told the parties he was going to set aside the unlawful
command influence issue and first decide the member challenge issue. He then denied
both implied bias challenges. The appellant used his peremptory challenge to remove
SSgt JO from the panel. After the Government used its peremptory challenge against a
member who had not attended the all-call, six members remained on the panel, four of
whom (including Lt Col MG) had attended the all call briefing.
The parties then discussed the possibility of a defense motion for unlawful
command influence based on the discussion at the all call briefing because Lt Col MG
remained on the panel. After an overnight recess, trial defense counsel said the defense
would not be raising such a motion as the defense did not believe there was sufficient
information to support it. Although trial defense counsel acknowledged the case law was
unclear about whether an accused could waive “adjudicative unlawful command
influence,” he indicated he believed the accused could do so in this case even if there was
unlawful command influence and that the appellant wanted to in order to preserve his
beneficial pretrial agreement.
The Government did not take a position on whether adjudicative unlawful
command influence could be waived. After advising the military judge that no recording
of the all-call briefing had been made, trial counsel argued the information in the case so
far was insufficient to raise an issue of adjudicative unlawful command influence because
there was no evidence that the commander’s comments even hinted at what the audience
should do as panel members on a case.
In a discussion with the military judge, the appellant agreed with his counsel’s
assessment that the facts brought out in his case so far did not raise the issue of unlawful
command influence. After the military judge explained the potential relief the appellant
could receive if such improper influence was found, the appellant agreed he wanted to
“affirmatively waive any adjudicatory UCI [unlawful command influence] that may have
been brought up by the facts in this case,” in order to retain the benefit of his pretrial
agreement. He also signed a document which stated that the pretrial agreement precludes
the military judge or any appellate court “from having the opportunity to determine if [he
is] entitled to any relief” on his unlawful command influence issue and that he was
agreeing to this provision in order to get the benefit of the pretrial agreement.
4
Prior to trial, the appellant entered into a pretrial agreement which limited his confinement to 42 months. In that
agreement, the appellant agreed to waive all waivable motions. When this provision was discussed during the
appellant’s guilty plea inquiry, defense counsel stated it had not caused the defense to abandon any motions and the
appellant also indicated he understood the meaning of the provision and agreed to its requirement. Following voir
dire, defense counsel clarified that he had informed trial counsel he was not sure if an unlawful command influence
motion would be filed but had also discussed waiving that motion as part of the pretrial agreement.
4 ACM 38436
The military judge found the appellant knowingly and intelligently waived any
issue of adjudicative unlawful command influence. The appellant now argues that his
waiver was not knowing and voluntary because this type of unlawful command influence
cannot be waived, or, in the alternative, that the military judge abused his discretion in
accepting his waiver without sufficiently developing the record on the issue of unlawful
command influence.
Waiver of Unlawful Command Influence
When an appellant has intentionally relinquished or abandoned a known right at
trial, “it is extinguished and may not be raised on appeal.” United States v. Gladue,
67 M.J. 311, 313 (C.A.A.F. 2009) (citing United States v. Harcrow, 66 M.J. 154, 156 n.1
(C.A.A.F. 2008)). In United States v. Mezzanatto, 513 U.S. 196, 201 (1995), the
United States Supreme Court agreed that a criminal defendant “may knowingly and
voluntarily waive many of the most fundamental protections afforded by the
Constitution.”
The Government argues that under the “waive all waivable motions” pretrial
agreement provision and through his discussion with the military judge, the appellant has
waived his right to complain about this issue on appeal. To date, our superior court has
not applied waiver to issues of unlawful command influence arising during the
adjudicative process, as it has for those arising during the accusatorial process.5
Unlike the military judge here, our sister service courts have declined to apply waiver
5
See United States v. Riesbeck, __ M.J. __ No. 15-0074/CG, slip op. at 1 (C.A.A.F. 11 December 2014)
(concluding the issue of improper member selection was not waived and noting “improper member selection can
constitute unlawful command influence, an issue that cannot be waived”); United States v. Hutchins,
72 M.J. 294, 312 (C.A.A.F. 2013) (Baker, CJ, dissenting) (stating “the [unlawful command influence analytical]
framework is intended to promote the adjudication of the facts rather than a reliance on concepts of deference and
waiver”); United States v. Douglas, 68 M.J. 349, 356 n.7 (C.A.A.F. 2010) (citing United States v. Johnston,
39 M.J. 242, 244 (C.M.A. 1994)) (“We note that this Court has not applied the doctrine of waiver where unlawful
command influence is at issue.”); United States v. Reed, 65 M.J. 487, 491 (C.A.A.F. 2008) (“In assessing the issue
of unlawful command influence, we take into account the full and open litigation of the issue and the evidence
adduced at trial.”); United States v. Baldwin, 54 M.J. 308, 310 n.2 (C.A.A.F. 2001) (“We have never held that an
issue of unlawful command influence arising during trial may be waived by a failure to object or call the matter to
the trial judge’s attention.”); United States v. Haagenson, 52 M.J. 34, 37 (C.A.A.F. 1999); United States v.
Hamilton, 41 M.J. 32, 37 (C.M.A. 1994) (“Unlawful command influence at the referral, trial, or review stage is not
waived by failure to raise the issue at trial.”); United States v. Blaylock, 15 M.J. 190, 193 (C.M.A. 1983) (“In view
of the policy clearly stated in Article 37, UCMJ, 10 U.S.C. § 837, we have never allowed doctrines of waiver to
prevent our considering claims of improper command control. Indeed, to invoke waiver would be especially
dangerous, since a commander willing to violate statutory prohibitions against command influence might not
hesitate to use his powers to dissuade trial defense counsel from even raising the issue.”) (citations omitted).
Cf. United States v. Richter, 51 M.J. 213, 224 (C.A.A.F. 1999) (finding allegation of unlawful command influence in
preferral was waived by failure to raise the issue at trial); United States v. Weasler, 43 M.J. 15, 19 (C.A.A.F. 1995)
(“If an accused waives an allegation of unlawful command influence in the preferral of charges by failure to raise a
timely objection at trial, then surely an accused, following a timely objection, should be permitted to initiate an
affirmative and knowing waiver of an allegation of unlawful command influence in the preferral of charges in order
to secure the benefits of a favorable pretrial agreement. To hold otherwise would deprive appellant of the benefit of
his bargain.”).
5 ACM 38436
under similar circumstances. See United States v. Valmont, 73 M.J. 923, 933
(Army Ct. Crim. App. 2014) (electing not to apply waiver of adjudicative unlawful
command influence issue even though the appellant and trial defense team affirmatively
decided not to pursue issue of defense witnesses being subjected to reprisal);
United States v. Lopez, NMCCA 201200457, unpub. op at 11 (N.M. Ct. Crim. App.
30 July 2013) (“Because of the insidious nature of [unlawful command influence] and its
potential devastating impact on the very integrity of the court-martial process, we decline
to reflexively apply waiver even here where the civilian defense counsel specifically
declined to raise a[n] unlawful command influence motion” regarding the Commandant
of the Marine Corps’ “Heritage Brief”); see also Department of the Army Pamphlet 27-9,
Military Judges’ Benchbook ¶ 2-7-10 note 2 (1 January 2010) (“The accused . . . may
offer to waive an unlawful command influence motion if the unlawful command
influence involves issues occurring only during the accusatory phase of the court-martial
. . . as opposed to the adjudicative process . . . .”).
We recognize the military judge discussed this issue with the appellant who
affirmatively stated he agreed with his counsel about the lack of viability of the potential
motion and that he was willing to waive any such issue that did exist in his case. 6
However, given our superior court’s precedent, we find the appellant could not waive the
issue of whether his venire panel was subjected to unlawful command influence.
Relationship Between Unlawful Command Influence and Implied Bias
Article 37, UCMJ, 10 U.S.C. § 837, states “No person subject to [the UCMJ] may
attempt to coerce or, by any unauthorized means, influence the action of a court-martial .
. . or any member thereof . . . .” “Command influence is the mortal enemy of military
justice.” United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986).
We review allegations of unlawful command influence de novo. United States v.
Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013) (citing United States v. Harvey, 64 M.J. 13, 19
(C.A.A.F. 2006)). Once actual or apparent command influence is properly placed at
issue, “no reviewing court may properly affirm findings and sentence unless it is
persuaded beyond a reasonable doubt that the findings and sentence have not been
affected by the command influence.” Thomas, 22 M.J. at 394.
The defense has the initial burden of raising the issue of unlawful command
influence by presenting “some evidence” of unlawful command influence, meaning the
defense must “show facts which, if true, constitute unlawful command influence.”
United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999); Salyer, 72 M.J. at 423. This
“burden of showing potential unlawful command influence is low, but is more than mere
allegation or speculation.” Salyer, 72 M.J. at 423 (citing United States v. Stoneman,
57 M.J. 35, 41 (C.A.A.F. 2002). If raised on appeal, he must show (1) facts which, if
6
The discussion of this issue at trial appears to focus on actual unlawful command influence.
6 ACM 38436
true, constitute unlawful command influence; (2) the proceedings were unfair; and (3) the
unlawful command influence was the cause of that unfairness. Salyer, 72 M.J. at 423;
Biagase, 50 M.J. at 150. The burden then shifts to the Government, who must prove
beyond a reasonable doubt: (1) the predicate facts do not exist; or (2) the facts do not
constitute unlawful command influence; or (3) the unlawful command influence did not
affect the findings and sentence. Biagase, 50 M.J. at 151.
We review not only for actual unlawful command influence, but also for the
appearance of unlawful command influence. United States v. Lewis, 63 M.J. 405, 415
(C.A.A.F. 2006). The mere appearance of unlawful command influence may be
“as devastating to the military justice system as the actual manipulation of any given
trial.” United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991). The appearance of
unlawful command influence exists “where an objective, disinterested observer, fully
informed of all the facts and circumstances, would harbor a significant doubt about the
fairness of the proceeding.” Lewis, 63 M.J. at 415.
This test is similar to the one used to evaluate implied bias on the part of court
members. Both tests focus on “the perception of fairness in the military justice system as
viewed through the eyes of a reasonable member of the public.” Id. In fact,
“[c]hallenges based on implied bias and the liberal grant mandate address historic
concerns about the real and perceived potential for command influence on members’
deliberations. . . . The mandate recognizes that the trial judiciary has the primary
responsibility of preventing both the reality and the appearance of bias involving
potential court members.” United States v. Clay, 64 M.J. 274, 276–77 (C.A.A.F. 2007).
However, a military judge’s finding of no implied bias does not answer the
question of whether the accused would have prevailed under the more favorable burden
shifting regime used to evaluate unlawful command influence. 7 Stoneman,
57 M.J. at 41–42; Harvey, 64 M.J. at 21 (holding when the defense has presented some
evidence of unlawful command influence, the military judge should call on the
Government to meet its burden).8
Here, as in Stoneman and Harvey, the military judge focused solely on the implied
bias challenge. He did not make any findings or conclusions regarding the
burden-shifting framework, in part because the appellant agreed he could affirmatively
waive this issue. In some circumstances, this may result in an inadequate factual basis as
to the precise nature and extent of any unlawful command influence. Stoneman,
7
A judge on our sister court recently noted, “our superior court has not definitively addressed the interplay between
member disqualification for implied bias and curing the taint stemming from apparent [unlawful command
influence] on a prospective venire.” United States v. Howell, NMCCA 201200264, unpub. op at 44
(N.M. Ct. Crim. App. 22 May 2014) (concurring opinion).
8
In United States v. Youngblood, 47 M.J. 338 (C.A.A.F. 1997), our superior court evaluated a commander’s
comments solely under the construct of implied bias and did not discuss unlawful command influence, to the
consternation of two judges who believed unlawful command influence was the real issue in the case.
7 ACM 38436
57 M.J. at 42–43; Harvey, 64 M.J. at 22; United States v. Haagenson, 52 M.J. 34, 37
(C.A.A.F. 1999); Baldwin, 54 M.J. at 311; United States v. Dugan, 58 M.J. 253, 258–59
(C.A.A.F. 2003). We do not have that problem here as we find the record is adequately
developed for us to conduct our review of both the implied bias rulings and the possible
unlawful command influence in this case.
Implied Bias Challenge
A military accused enjoys the right to an impartial and unbiased panel.
United States v. Mack, 41 M.J. 51, 54 (C.M.A. 1994). This right stems from “the
Constitution, federal statutes, regulations and directives, and case law.” United States v.
Terry, 64 M.J. 295, 301 (C.A.A.F. 2007). Rule for Courts-Martial (R.C.M.)
912(f)(1)(N), requires that a member be excused whenever he should not sit “in the
interest of having the court-martial free from substantial doubt as to legality, fairness, and
impartiality.” This provision encompasses challenges based upon actual and implied
bias. United States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008). The latter exists
when, “regardless of an individual member’s disclaimer of bias, most people in the same
position would be prejudiced.” United States v. Briggs, 64 M.J. 285, 286
(C.A.A.F. 2007) (quoting United States v. Napolitano, 53 M.J. 162, 167 (C.A.A.F. 2000))
The test for deciding an implied bias challenge is objective, “viewed through the
eyes of the public, focusing on the appearance of fairness” and is evaluated based on the
totality of the factual circumstances. United States v. Bagstad, 68 M.J. 460, 462
(C.A.A.F. 2010). “The hypothetical ‘public’” in this analysis “is assumed to be familiar
with the military justice system.” Id. In conducting this objective test, we determine
“whether the risk that the public will perceive that the accused received something less
than a court of fair, impartial members is too high.” United States v. Townsend,
65 M.J. 460, 463 (C.A.A.F. 2008). “The focus of this rule is on the perception or
appearance of fairness of the military justice system[,]” United States v. Dale,
42 M.J. 384, 386 (C.A.A.F. 1995), since “[t]he rule ‘reflects the President’s concern with
avoiding even the perception of bias, predisposition, or partiality.’” United States v.
Minyard, 46 M.J. 229, 231 (C.A.A.F. 1997) (quoting United States v. Lake,
36 M.J. 317, 323 (C.M.A. 1993).
Because the test is objective, we give less deference to the trial judge when
reviewing a military judge’s ruling on a challenge for cause based on implied bias.
United States v. Napolitano, 53 M.J. 162, 166 (C.A.A.F. 2000). The standard of review
is “less deferential than abuse of discretion, but more deferential than de novo review.”
United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006). We must also be mindful of
the “liberal grant” mandate, which recognizes the unique nature of court-martial panels
and the accused’s single peremptory challenge. Id.; United States v. White,
36 M.J. 284, 287 (C.M.A. 1993); United States v. James, 61 M.J. 132, 139
(C.A.A.F. 2005). Where a military judge recognizes his duty to liberally grant defense
8 ACM 38436
challenges for cause and puts his reasoning on the record, his exercise of discretion will
rarely be reversed. Clay, 64 M.J. at 277. Military judges need not express “record
dissertations” concerning a decision on implied bias but must provide “a clear signal that
the military judge applied the right law.” Clay, 64 M.J. at 277 (quoting United States v.
Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)) (internal quotation marks omitted). Where
a military judge determines not to grant the challenge in a close case, “additional analysis
on the record will better inform appellate courts in their review and determination as to
whether there was an abuse of discretion.” United States v. Peters, __ M.J. __
No. 14-0289/AF, slip op. at 7 (C.A.A.F. 12 February 2015).
Here, the military judge denied the defense’s challenge to Lt Col MG.9 Several
days before he sentenced the appellant for sexual contact with a minor, Lt Col MG heard
the wing commander describe the Air Force’s “zero tolerance for sexual assaults,”
express his belief that a small number of people on base were “wolves . . . clothed in
sheep coats,” and stating he would “kill” anyone who sexually assaulted one of his
daughters. Lt Col MG also told the parties he did not believe he had to act in a certain
way at the appellant’s court-martial and that he would make his own decision in the case
while following the military judge’s instructions. After hearing this and observing
Lt Col MG during voir dire, the military judge found Lt Col MG did not have an
inflexible attitude in sentencing and had not been influenced by the wing commander’s
comments. After acknowledging the liberal grant mandate, the military judge denied the
implied bias challenge as “any reasonable individual looking in on these proceedings
would not feel that [Lt Col MG’s] participation in the deliberation room would create an
appearance of unfairness.” As in Peters, the military judge here could have provided
additional analysis to better inform our review; however, even if we granted his decision
less deference, we still have sufficient information to conclude Lt Col MG’s presence on
the panel did not constitute implied bias.
The military judge found Lt Col MG to be sincere and credible when he stated he
would not be affected by the all-call briefing, and we agree no actual bias exists. Also,
applying the standard of review discussed above and being cognizant of case law finding
implied bias when most people in the same position would be prejudiced, we hold that
the military judge did not err in denying the challenge for cause as to Lt Col MG.
Although Lt Col MG did hear the commander say he would “kill” anyone who sexually
assaulted his own daughter, we do not find that his regrettable choice of words had an
adverse impact on Lt Col MG’s ability to render an impartial decision on the appellant’s
sentence.
Considering the totality of the circumstances while viewing the situation through
the eyes of the public and focusing on the appearance of fairness in the military justice
system, we find there is not too high a risk that the public will perceive that the appellant
9
Because the defense exercised its peremptory challenge on the other member (Staff Sergeant JO), there is no
appellate review of the military judge’s denial of that challenge for cause. Rule for Courts-Martial 921(f)(4).
9 ACM 38436
received less than a court composed of fair and impartial members when Lt Col MG sat
on the panel. Furthermore, we find this is not a case where Lt Col MG would be affected
by subtle or imperceptible pressure, and it is not a circumstance where most people in the
same situation as Lt Col MG would be prejudiced. See United States v. Youngblood,
47 M.J. 338, 342 (C.A.A.F. 1997); Dugan, 58 M.J. at 258–59; Daulton, 45 M.J. at 217.
Allowing him to sit as a panel member is not “asking too much of . . . him [or] the
system.” Dale, 42 M.J. at 386.
Unlawful Command Influence
The use of command meetings to purposefully influence panel members in
determining a court-martial sentence constitutes unlawful command influence.
Article 37, UCMJ; Dugan, 58 M.J. at 258. Here, there was no evidence presented that
the wing commander intended to influence panel members when he conducted the all-call
briefing and we do not infer that he had such an intent after considering the responses of
all the venire panel members who were present at that briefing.
Regardless of the commander’s intent, however, his comments may constitute
unlawful command influence depending on “the confluence of subject [matter] and
timing, particularly as they affect the minds—however subtly or imperceptibly—of the
triers of fact.” Dugan, 58 M.J. at 258, citing to United States v. Brice, 19 M.J. 170, 172
n. 3 (C.M.A. 1985); Baldwin, 54 M.J. at 310. It is sometimes difficult for a subordinate
to ascertain the actual influence his superior has on him. Youngblood, 47 M.J. at 341. In
some circumstances, an inference of unlawful command influence can be made based on
the timing of such a meeting when coupled with its content. Dugan, 58 M.J. at 259.
Even when panel members have been exposed to comments suggestive of
unlawful command influence construct, an accused can receive a fair trial where there is
(1) full disclosure of the matter on the record; (2) an assessment of the members’ ability
to render an impartial judgment; and (3) proper instruction on the members’ judicial duty.
United States v. Martinez, 42 M.J. 327, 332 (C.A.A.F. 1995). The parties and the
military judge have the burden to “‘fully question the court members during voir dire’ to
determine whether a commander’s comments ‘had an adverse impact on the member’s
ability to render an impartial judgment.’” Stoneman, 57 M.J. at 41 (quoting Thomas,
22 M.J. at 396); United States v. Reed, 65 M.J. 487, 491 (C.A.A.F. 2008).
Here, the venire panel was fully questioned regarding their perceptions and
recollections about the wing commander’s all-call briefing. All of the panel members
who attended the briefing, including Lt Col MG, said their decisions would not be
influenced by the commander’s statements and agreed to only consider evidence admitted
in the case when fashioning a sentence for the appellant. United States v. Reynolds,
40 M.J. 198, 202 (C.M.A. 1994). Their responses during voir dire did not indicate they
felt any pressure based on their attendance at the briefing, nor that they believed the
10 ACM 38436
commander expected them to act in a particular way at a court-martial. See Reed,
65 M.J. at 491. Although Lt Col MG did hear the commander say he would “kill”
anyone who sexually assaulted his own daughter, as noted above, we do not find that his
regrettable choice of words had an adverse impact on Lt Col MG’s ability to render an
impartial decision on the appellant’s sentence.
Therefore, even if the remarks of the wing commander constituted “some
evidence” of unlawful command influence, we conclude based on our de novo review of
the record that the Government has met its burden of demonstrating beyond a reasonable
doubt that those remarks did not affect the sentence received by the appellant.
Furthermore, we find that an objective, disinterested, reasonable member of the public,
fully informed of all the facts and circumstances, would not harbor a significant doubt
about the fairness of the appellant’s court-martial proceeding. See Lewis, 63 M.J. at 415.
Sex Offender Registration
During his unsworn statement, the appellant asked the panel for leniency as he was
going to start his new life after confinement with the labels of federal convict and sex
offender. Without defense objection, the military judge instructed the panel that the
appellant’s unsworn statement contained his personal views on sex offender registration
and the panel must give it appropriate consideration. He also instructed that their
deliberations should focus on an appropriate sentence for the offenses and the fairness of
that sentence must not depend on the actions others may take.
The military judge required the defense to remove a reference to sex offender
registration from the letter submitted by the appellant’s mother at trial. The appellant
contends this was an abuse of the military judge’s discretion as sex offender registration
is not a collateral consequence of the appellant’s conviction. Since the filing of the
appellant’s brief in this case, our superior court has issued an opinion which requires
rejection of the appellant’s argument.
In United States v. Talkington, 73 M.J. 212, 213 (C.A.A.F. 2014), our superior
court held that sex offender registration is a collateral consequence of the conviction
alone and has no causal relationship to the sentence imposed for the offense. Thus, while
an accused is permitted to raise this collateral consequence in his unsworn statement, “the
military judge may instruct the members essentially to disregard the collateral
consequence” as they deliberate on an appropriate sentence for an accused. Id.; see also
Barrier, 61 M.J. at 485–86; United States v. Tschip, 58 M.J. 275, 277 (C.A.A.F. 2003).
In light of this holding, the military judge’s decision to require the defense to remove the
reference to sex offender registration from the mother’s letter and his instruction to the
panel were not an abuse of discretion and were in accordance with the holding in
Talkington.
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Conclusion
The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
12 ACM 38436