Petition for Writ of Certiorari — Everald S. Allen, Jr., Petitioner v. Kevin Payne, Commandant, United States Disciplinary Barracks, Fort Leavenworth

Supreme Court briefApr 11, 2024

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IN THE

Supreme Court of the United States

EVERALD S. ALLEN, JR.

Petitioner,

Suprem

Filedn7lm!

KEVIN PAYNE.,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

EVERALD S. ALLEN, JR

Pro Se

United States Disciplinary Barracks

1300 N. Warehouse Road

Fort Leavenworth, KS 66027

APR 1 1 2024

°FFICE of

TH£clerk

QUESTION PRESENTED

The question presented is:

Whether the trial and conviction of Everald Allen Jr. was tainted as a direct

cause of actual Unlawful Command Influence (UCI), appearance of unlawful

command influence, or perceived unlawful command influence stemming from thenPresident Obama media comments in May 7, 2013, three weeks before the trial at

issue whether there should be a separate strict liability standard applied to certain

UCI simply due to what comments, who says them, when, and to what audience?

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RELATED PROCEEDINGS

Allen v. Payne et al,. No. 23-3138, U.S. Court of Appeals for the Tenth Circuit, panel

rehearing, judgment entered on January 25, 2024

Allen v. Payne et al,. No. 23-3138, U.S. Court of Appeals for the Tenth Circuit

judgment entered on December 4, 2023

Allen v. Payne et al., No. 23-3061-JWL, U.S. District Court, District of Kansas,

judgment entered on June 30, 2023

Allen v. Payne et al., No. 23-3061-JWL, U.S. District Court, District of Kansas,

reconsideration, judgment entered on August 7, 2023

United States v. Allen, No. 20130521, Army Court of Criminal Appeals, judgment

entered on March 28, 2016

;

United States u. Allen, No. 16-0571/AR, Court of AppealsLor the Armed Forces,

judgment entered on July 25, 2016

United States v. Allen, No. 16-0571/AR, Court of Appeals for the Armed Forces,

Reconsideration, judgement entered on August 29, 2016

United States v. Allen, No. 20130521, Army Court of Criminal Appeals,

extraordinary relief pro se writ of habeas corpus, judgment entered on June 21,

2017

United States v. Allen, No. 20130521, Army Court of Criminal Appeals, pro se

motion for reconsideration en banc, judgment entered on January 31, 2018

United States v. Allen, No. 20130521, Army Court of Criminal Appeals, motion for

reconsideration, judgment entered on March 23, 2018

United States v: Allen, No. 16-0571/AR, Court of Appeals for the Armed Forces,

motion for reconsideration, judgment entered on June 26, 2018

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TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

INTRODUCTION

STATEMENT

A. Legal Background

B. Proceedings Below

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REASONS FOR GRANTING THE PETITION

CONCLUSION

APPENDIX A: Tenth Circuit Panel Rehearing Denial (January 25, 2024)

APPENDIX B: Tenth Circuit Opinion (December 4, 2023)

APPENDIX C: District Court Opinion (June 30, 2023).....

APPENDIX D: Army Court of Criminal Appeals Opinion (March 28, 2016)............ Id

APPENDIX E: “Report of Barriers to the fair administration of Military Justice is

sexual assault case” a Subcommittee of the Judicial Proceedings Panel report (May

2017)

APPENDIX F: University of Illinois Law Review, “Justice is no longer Blind,” report

(January 29, 2016)

c .

APPENDIX G: Secretary of Defense Memo “Integrity ofthe Military Justice

Process” (August 6 2013)

APPENDIX H: News Articles reporting on Unlawful Command Influence

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TABLE OF AUTHORITIES

CASES

Page(s)

Allen u. Payne et al., No. 23-3061-JWL, U.S. District Court

20, 21

Allen v. Payne et al., No. 23-3138, U.S. Court of Appeals for the Tenth Circuit.20, 21

United States v. Allen, United States Army Court of Criminal Appeals, 2016 CCA

LEXIS 185, ARMY 20130521

18, 19

United States v. Allen, United States Court of Appeals for the Armed Forces, 75 MJ

404; 2016 CAAF LEXIS 604, No. 16-0571/AR

18, 19

United States v. Averell, United States Navy-Marine Corps Court of Criminal

Appeals, 2014 CCA LEXIS 841, NMCCA 201300471..............................................

United States v. Bergdahl, United States Court of Appeals for the Armed Forces

80 MJ 230; 2020 CAAF LEXIS 489; No. 19-0406........................................................... 15,

United States v. Bergdahl, United States Army Court of Crihimal Appeals,

79 MJ 512; 2019 CCA LEXIS 297; ARMY 201705824

United States v. Boyce, United States Court of Appeals for-the Armed Forces,

76 MJ 242; 2017 CAAF LEXIS 494, No. 16-0546..................... ...............................

United States v. Corcoran, United States Navy-Marine Corps-Court of Criminal

Appeals, 2014 CCA LEXIS 901, NMCCA 201400074

United States v. Fuentes,

United States v-. Johnson,

United States v. Wiesen, United States Court of Appeals for the Armed Forces’

56 M.J. 172; 2001 CAAF LEXIS 1461, No. 01-0134/AR............................................

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TABLE OF AUTHORITIES

(continued)

Page(s)

CONSTITUTIONAL PROVISION

U.S. CONST, art. I, § 8, cl. 14

U.S. CONST, amend. V...........

STATUTES

10 U.S.C. § 822......

10 U.S.C. § 837......

28 U.S.C. § 2241....

28 U.S.C. § 1254(1)

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RULES

M.C.M. Rule 104

OTHER AUTHORITIES

“Report of Barriers to the fair administration of Military Justice is sexual assault

case” Subcommittee of the Judicial Proceedings Panel report (May 2017)

14,16,17,19

“Justice is no longer Blind,” University of Illinois Law Review, (January 29, 2016) '

..................................................................................... ............... .............. ...11,12,19,22 ;

Integrity of the Military Justice Process” Secretary of Defense Memorandum

(August 6, 2013)

News Articles reporting on Unlawful Command Influence:

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a) Stars and Stripes: “Judge: Obama sex assault comments ‘unlawful

command influence”’

b) The New York Times: “Hagel Tries to Blunt Effect of Obama Words on ' '

Sexual Assault Cases”

c) San Diego Union Tribune: “Navy SEAL wrongly convicted of sex crimes

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due to political correctness, retired admiral asserts”

PETITION FOR A WRIT OF CERTIORARI

Petitioner Everald S. Allen, Jr. respectfully petitions for a writ of certiorari to

review the judgment of the Army Court of Criminal Appeal, Court of Appeals for the

Armed Forces, and the United States Court of Appeals for the Tenth Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals for the Tenth Circuit is reported at 2023 U.S.

App. 23-3138 and reprinted in the Appendix to the Petition (“Pet. App.”) at lb. The

decision from the district court is reported at 2023 U.S. Dist LEXIS 113943 and

reprinted at Pet. App. lc. The decision from the army court of criminal appeals is

reported at 2016 CCA LEXIS 185 and reprinted at Pet. App. Id.

JURISDICTION

The court of appeals entered its judgment on December 4, 2023, Pet. App. lb and

denied a timely petition for rehearing en banc on1 January-25, 2024,‘ id. at la. The •'

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). ; v

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The Make Rules Clause authorizes Congress “[t]o make rules for the government

and regulation of the land and naval forces.” U.S. CONST, art. I, § 8,' cl. 14.

The Due Process Clause of the Fifth Amendment prohibits the federal government from

depriving any person of "‘life, liberty, or property, without due process of law.” Id. Amend V.

Title 10 U.S.C. § 837; Article 37, U.C.M.J., Unlawfully influencing

action of court (2012)

No authority convening a general, special, or summary.court-martial, ndr an}'

other commanding officer, may censure, reprimand/or admonish the court or

any member, military judge, or counsel thereof, with-respect to the findings

or sentence adjudged by the court, or with respect to any other exercise of its

or his functions in the conduct of the proceeding. 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, ioEthe action of any

convening, approving, or reviewing authority with respect to his judicial acts.

The foregoing provisions of the subsection shall not apply with; respect to (1)

general instructional or informational courses in military justice if such

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courses are designed solely for the purpose of instructing members of a

command in the substantive and procedural aspects of courtsunartial, or (2)

to statements and instructions given in open court by the military judge,

president of a special court-martial, or counsel.

....

In the preparation of an effectiveness, fitness, or efficiency report, or,any

other report or document used in whole or in part for the purpose of

determining whether a member of the armed forces is qualified to be

advanced, in grade, or in determining the assignment or transfer of a

member of the armed forces or in determining whether a member of the

armed forces should be retained on active duty, no person subject to this

chapter may, in preparing any such report (1) consider or evaluate the

performance of duty of any such member as a member of a court-martial, or

(2) give a less favorable rating or evaluation of any member of the armed

forces because of the zeal with which such member, as counsel; represented

any accused before a court-martial.

Title 10 U.S.C. § 822; Article 22 U.C.M.J., Who may convene general

courts-martial (2012)

(a) General courts-martial may be convened by—:

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(1) the President of the United States;- ■:

(2) the. Secretary of Defense;

(3) the commanding officer of a unified or specified combatant command;

(4) the Secretary concerned;

(5) the commanding officer of an Army Group* an Army, an Army Corps, a

division, a separate brigade, or a corresponding unit .of .the Army or Marine

Corps;

(6) the commander of a fleet; the commanding officer of a naval station or

larger shore activity of the Navy beyond the United States;

(7) the commanding officer of an air command, an air force, an air division,

or a separate wing of the Air Force or Marine Corps, or the commanding

officer of a corresponding unit of the Space Force;

(8) any other commanding officer designated by the Secretary concerned; or

(9) any other commanding officer in any of the drmed forces when

empowered by the President.

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(b) If any such commanding officer is an accuser, the couiit shall be convened

by superior competent authority, and may in any Case be'convened by such

authority if considered desirable by him.

Manual for Courts Martial (2012)

Rule 104. Unlawful command influence

(a) General prohibitions.

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(1) Convening authorities and commanders. No convening authority or

commander may censure, reprimand, or admonish a court-martial or other

military tribunal or any member, military judge, or counsel thereof, with

respect to the findings or sentence adjudged by the court-martial or tribunal,

or with respect to any other exercise of the functions of the court-martial or

tribunal or such persons in the conduct of the proceedings. —

(2) All persons subject to the code. No person subject-to'the1 code may attempt

to coerce or, by any unauthorized means, influence the action of a courtmartial 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 such authority’s judicial acts.

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INTRODUCTION

This petition presents an important question of constitutional law: Whether

President Obama’s May 2013 comments tainted court-martial proceedings of service

members within a certain timeframe with actual Unlawful Command Influence

(UCI), the appearance of UCI, or perceived UCI? If so, should there be a separate

strict liability standard applied to certain UCI simply due to what comments, who

says them, when, and to what audience.

On May 7, 2013, the President and Secretary of Defense (SECDEF) made a

statement to national media about the problem of sexual assault in the military; the

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President at the press conference expressed his intent and the result he wanted, “I

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expect consequences,” “So I don’t just want more speeches or awareness programs or

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training, but ultimately folks look the other way. If we find out somebody’s

engaging in this, they’ve got be held accountable prosecuted, stripped of their

positions, court-martialed, fired, and dishonorably discharged.” Three weeks after

President made these comments Petitioner was facing a court-martial at Fort

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Bragg, North Carolina for sexual assault. Court-martial panel members admitted

during voir dire to hearing President Obama’s and SECDEF’s statement. Some of

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the members characterized the President’s statements as a military directive to

take a more aggressive stance on sexual abuse, and some beiieved not enohgh was

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being done to prosecute allegations of sexual assault. Some members even voiced

that they should do what the President asked them to do. Later this same panel of

officers who are directly accountable to the President convicted Petitioner of sexual

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assault solely based on the uncorroborated testimony of an alleged .victim - a : . •

servicemember and friend of Petitioner, who claimed she \ya.s “incapacitated” pr

“drunk” when a sexual assault occurred. However, her testimony does not match

the evidence presented at trial — no physical evidence whatsoever was found to

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connect Petitioner to the alleged sexual assault. According to the alleged victim,

Petitioner disrobed her and sexually assaulted her on bedsheets - despite an

extensive sampling of the alleged crime scene, Petitioner’s DNA was not found.

Also, the alleged victim testified at the time of the assault, she was on her

menstrual cycle, but no menstrual fluid was found on the bedsheets.

Additionally, extensive swabbing and sampling was performed to collect DNA on

the alleged victim’s body, vulva, vagina, etc. only hours after the alleged sexual

assault. However, the forensic lab did not find Petitioner’s DNA.. Military

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investigators from Criminal Investigation Division (CID) testified on the record

there was no evidence or anything of evidentiary value to both charges against the

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STATEMENT

A. Legal Background

In the case of United States u. Boyce, 76 MJ 242; 2017 CAAF LEXIS 494, No. 160546, provides a comprehensive history of UCI, established the standard for what

UCI is and standard of review for court-martial cases that allege UCI. Petitioner

extensively quotes Boyce as it authoritatively captures all essentials of command

influence and how it poisons the military justice process by creating bias in courtmartial panel members by skewing judgment of other servicemembers in order to

please superiors in the chain of command:

It has long been a canon of this Court's jurisprudence that "[unlawful] ■

[cjommand influence is the mortal enemy of military' justice.''^United States v.

Thomas, 22 M.J. 388, 393 (C.M.A. 1986).). "Indeed," as Chief Judge Everett

noted in Thomas, "a prime motivation for establishing’a civilian Court-of

Military Appeals was to erect a further bulwark against impermissible

command influence." Id. And importantly-, our Cotlrt's'fulfillment of that

responsibility "is fundamental to fostering public confidence in the ... fairness

of our system of justice." United States v. Harvey; 64 M.J. 13, 17 (C.A.A.F.

2006). Two types of unlawful command influence can arise in the military

justice system: actual unlawful command influence and the appearance of

unlawful command influence. From the outset, actual unlawful command

influence has commonly been recognized as Occurring* when tbereds an >"

improper manipulation of the criminal justice process which negatively

affects the fair handling and/or disposition of a case. See United, States u.

Allen, 33 M.J. 209, 212 (C.M.A. 1991); see also United States v. Allen, 31 M.J.

572, 584 (N.M.C.M.R. 1990) ("Unlawful commandirtfluenceI.1.'.1 is :-M

impermissible command control."). As reflected below, however, it took •

decades for this Court's jurisprudence to define the contours of what • constitutes a meritorious claim of an appearance of unlawful command

influence. Initially our Court did not differentiate-between^actual unlawful

command influence and the appearance of unlawful cofriMand influence'. Over

the years, however, we have explored the distinctionsPetweeri the two.

The first known acknowledgment of the impropriety of am appearance of

unlawful command influence arose in 1954. In a concurring opinion-in United

States v/Knudson, 4 C.M.A. 587, 598, 16 C.M.R. 161,1<72 (1954) (Brosman,

J., concurring in the result), Judge Brosman wrote: [T]he unfortunate

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circumstance that the convening authority had pres.viousl^ a.nd^openly

damned one of these functionaries as an abuser of jd.isc^tiop.,gives the.. ,

conduct of the trial an especially unpleasant aronqa. Viewing the record as a

whole, I am fortified in my belief that the appearance ^('comniand influence"

is vivid enough here to require reversal. (Emphasi£j>na4,ded,.].,

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The first time that a majority of the Court, of Military Appeals cited, qn

appearance of unlawful command influence as a basis for reversing

the conviction of a servicemember occurred ten years later. In United

States v. Johnson, 14 C.M.A. 548, 551, 34 C.M.R. 328, 331 (1964), the Court

stated:

In approaching a problem of this nature, the apparent existence of

"command control," through the medium of pretrial, communication

with court members, is as much to be condemned a,s its actual

existence. As a matter of principle, any doubt in the matter,must be

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resolved'in favor of the accused. (Emphasis added.)/.•-■fA

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The Court further stated, "The appearance, or the existence, of

command influence provides a presumption of prejudice." Id.

(emphasis added).

It took another three decades for the standard that-we how- use in '■ determining whether there was an appearance of unlawful’command

influence to emerge. Once again, it was a separate opinion That Jed the way.

Judge Wiss stated:

One judge even went so far as to suggest [that] "[t]he-practice of ranking

appellate judges should be discontinued. In the absence of‘specific objective

criteria, an objective, disinterested observer fullyunformed of The facts would

entertain a significant doubt that justice was being'done'! and would perceive

an appearance of command influence. United States v. Mitchell, 39 M.J. 131,

151 (C.M.A. 1994) (Wiss, J., concurring in part, dissenting in part, and

concurring in the result) (alteration in original) (quoting United States v.

Mitchell,-37 M.J. 903, 930 (N.M.C.M.R. 1993) (Reed1; J.>, (concurring in the

result)). This language was adopted in a majority opinion four years later.

See United States v. Calhoun, 49 M.J. 485, 488 (C.A.A.F. 1998) ("[We] decline

to enshrine a right to private civilian counsel paid'for by1'the Government

unless an objective, disinterested observer,' with knowledge'of Ml the* facts,

could reasonably conclude that there was at‘least an appearance of-unlawful

command influence over all military and other government defense counsel."

(emphasis added)).

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A further refinement of this Court's jurisprudence, regarding the appearance

of unlawful command influence occurred a few years later. Quoting United

States v. Rosser, 6 M.J. 267, 271 {76 M.J. 248} (C.M.A. 1979), and citing'"the

spirit of the Code,’" this Court in United States v. Stoneman favorably cited

our previous observation that "'[t]he appearance of unlawful command

influence is as devastating to the military justice system as the

actual manipulation of any given trial.'" 57 M.J. 35, 42 (C.A.A.F. 2002/

And importantly, in Stoneman we more explicitly explained the distinction

between actual unlawful command influence and the appearance of unlawful

command influence:

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The question whether there is an appearance of unlawful command influence

is similar in one respect to the question whether’ there is implied bias,

because both are judged objectively, through the eyes of the community....

Even if there was no actual unlawful command influence, there may

be a question whether the influence ,of command placed an [ ! t

"intolerable strain on public perception of the military justice

system." See United States v. Wiesen, 56 MJ 472, 175 (2001).Id. at 42-43 ■ r

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(emphasis added) (citations omitted).

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Chief Judge Erdmann wove together the various strhndsmf oitr jurisprudence

on this topic a decade ago in United States v. Lewis', 63 MU.-405, 413

(C.A.A.F, 2006). In doing so, he first stated that in’order for aclaim of actual

unlawful command influence to prevail, an accused must meet the burden of

demonstrating: (a) facts, which if true, constitute unlawful command

influence; (b) the court-martial proceedings were unfair to the accused (i.e.,

the accused was prejudiced); and (c) the unlawful command influence was the

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cause of that unfairness. Id.

Next, in regard to an appearance of unlawful command--'iilfluenbe, Chief

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Judge Erdmann wrote:

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Congress and this court are concerned not only with eliminating

actual unlawful command influence, but also with "eliminating even

the appearance of unlawful command influence at courts-martial."

United States v. Rosser, 6 M.J. 267, 271 (C.M.A. F57^.;.;.[T] he'"'appearance

of unlawful command influence is as devastating to the'military

justice system as the actual manipulation of any'given trial."'

Simpson, 58 M.J. at 374 (quoting Stoneman; 57 M)J. at 42-43). Thus,

"disposition of an issue of unlawful command influence-falls short if

it fails to take into consideration ... the appearance of unlawful

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command influence at courts-martial." Id.

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Whether the conduct of the Government in this case created-an appearance of

unlawful command influence is determined objectively. Stoneman, 57 M.J. at

42. "Even if there was no actual unlawful command in fluence, there

may be a question whether the influence of command placed an

'intolerable strain on public perception of the military justice

system.'"Id. at 42-43 (quoting United States v. Wiesen, 56 M.J. 172. 175

(C.A.A.F. 2001)). The objective test for the appearance of unlawful command

influence is similar to the tests we apply in reviewing questions of implied

bias on the part of court members or in reviewing challenges to military

judges for an appearance of conflict of interest. We focus upon the perception

of fairness in the military justice system as viewed through the eyes of a

reasonable member of the public. Thus, the appearance of unlawful command

influence will exist where 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 415 (alteration in original) (citations

omitted).

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As can be seen from the above, unlike actual unlawful command influence

where prejudice to the accused is required, no such'showing is-required for a

meritorious claim of an appearance of unlawful command influence.' Rather,

the prejudice involved in {76 M.J. 249} the latter instance-is-the damage to

the public's perception of the fairness of the ihilitary justice' system as: a: • •

whole and not the prejudice to the individual accused. .Consequently,!

consistent with Chief Judge Erdmann's opinion in Lewis, it. is sufficient for

an accused to demonstrate the following factors in support !Of-a’ claim of an •

appearance of unlawful command influence:-(a) facts; which if true, constitute

unlawful command influence; and (b) this unlawful command influence ■

placed an "intolerable strain" on the public's perception-of the military justice

system because "an objective, disinterested observer,-fully informed of all the

facts and circum stances, would harbor a significant doubt' about the fairness

of the proceeding." Id. (internal quotation marks omitted) (citation omitted).

In light of these two factors, the following process ensues when an appellant

asserts there was an appearance of unlawful command influence. The

appellant initially must show "some evidence" that unlawful command '

influence occurred. Stoneman, 57 M.J. at 41 (internal quotation marks

omitted) (citation omitted); see also United States l>: Ayala,‘43 M.J. 296, 300

(C.A.A.F. 1995) ("The quantum of evidence riecesSary to raise1 unlawful

command influence is the same as that required to'submit a factual issue to

the trier of fact [i.e., "some evidence]."). This burden on the1 defense is low* but

the evidence presented must consist of more than "mere allegation or ■

speculation." United States v. Salyer, 72 M.J,' 415’, 423 '•(C-A.A.F'. 2013); see •

also Allen, 33 M.J. at 212 ("Proof of [command influence] inTthe-air/so to - •

speak, will not do." (internal quotation marks omitted) (ditatioh omitted)).

Once an appellant presents "some evidence" of unlawful command influence,

the burden then shifts to the government to rebut the allegation. Specifically,

the government bears the burden of proving beyond a reasonable doubt that

either the predicate facts proffered by the appellant do not exist, or the facts'

as presented do not constitute unlawful command influence. Salyer,'72 M.J.

at 423, see also Biagase, 50 M.J. at 151 ("[RJegarding the quantum 6f proof

required: once an issue of unlawful command influence is raised, the

Government must persuade the military judge and the appellate

courts beyond a reasonable doubt that there was no unlawful

command influence or that the unlawful comriiand influence did not

affect the findings and sentence."). If the government meets its burden,

the appellant's claim of unlawful command influence will be deemed to be

without merit and no further analysis will be conducted. See Salyer, 72 M.J.

at 423; Biagase, 50 M.J. at 151.

If the government does not meet its burden of rebutting the allegation at this

initial stage, then the government may next seek to prove beyond a •

reasonable doubt that the unlawful command influence did not ,place "’an

intolerable strain upon the public's perception of the military justice system

and that "’an objective, disinterested observer, fully i nformed, of all the facts

and ciicumstances, would [not] harbor a significant-doubt'abput the-fairness

of the proceeding.’" {76 M.J. 250} Salyer, 72 M.J. at 423 (quoting Lewis, 63 ’

M.J. at 415). If the government meets its evidentiary burdeirahthis stage of

the analysis, then the appellant merits no relief on the grounds- thatthere

was an appearance of unlawful command influence: See} big:} United States v.

Villareal, 52 M.J. 27, 30-31 (C.A.A.F. 1999) (this Court affirming the decision

of the court below after finding that any appearance of unlawful command

influence was cured by the military judge’s actionb at court-martial). If the

government does not meet its evidentiary burden, however, this Court will

fashion an appropriate remedy. Lewis, 63 M.J. at 416.

It is these precedents, principles, and procedures which have been articulated

by this Court over the course of more than six decades- whichserve as our

touchstone as we analyze Appellant's claims of unlawful command influence

in the instant case. Essentially, according to Boyce, the -courts can reverse a

conviction even if the accused was not prejudiced personally by the'apparent

unlawful command influence.

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2) Law applied to President Obama’s UCI in context of Petitioner’s Court

Martial.

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Military Courts have recognized UCI created by President Obama and his

SECDEF’s comments from Ma}^ 7, 2013, on sexual assault prosecutions in the

military — both are the military’s top leadership; the President personally appoints

military officers who serve as court-martial panel ®embexs,. .they iserve at the,

pleasure of the President, they can also be removed by the President at any time;

and both the President and SECDEF have the authority';to convene a General Court

Martial according to 10 U.S.C. § 822. The military courts recognized the prejudicial

affect the President and SECDEF’s comments on sexual assault in the military had

on officers serving as court-martial panel members, see below:

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1. In June 2013, a Military Judge at Shaw Air Force Base, SC dismissed

charges of sexual assault against an Army Officer, noting the Command

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Influence Issue created by President Obama’s comments on sexual assault in

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the military1;

2. In June 2013, in the case of United States v. Averell, Commander John

Maksym, Navy Judge, found President Obama and General Dempsey’s

comments “constituted apparent [unlawful command influence] and granted

the defense extra preemptory challenges;

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3. In June 2013, United States v. Fuentes and'United States v. Johnson,

Navy Judge Commander Marcus Fulton, peremptorily determined two

defendants in military sexual assault cases could not be punitively

discharged, if found guilty, because of “unlawful command influence” derived

See Appendix F “University of Illinois Law Review” Pg 227

2 See Appendix F “University of Illinois Law Review” Pg 227

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from the comments made by President BaraGk Obama: ‘Judge Fulton was

also quoted3 saying:

A member of the public would not hear the President’s

statement to be a simple admonition to hold members

accountable,” he stated. “A member of the public would draw

the connection between the ‘dishonorable discharge’ required

by the President and a punitive discharge approved by the

convening authority.” “The strain on the system created by

asking a convening authority to disregard [Obama’s] statement

in this environment would be too much to sustain public

confidence.

4. In August 2013, Secretary of Defense Chuck Hagel, recognized the prejudice

he and the President’s comments caused to military officers and commanders

and issued a “corrective” memorandum that was dispersed far and wide to

cure the UCI he and the President comments created in the minds of military

leaders and the public — the SECDEF “reminded”-military leaders to beimpartial and neutral in the administration of military justice:4

3) How the law was not applied to the Petitioner’s ease ahd possibly other

service members Courts-Martial.

Petitioner’s trial was on May 28, 2013 President’s Comments were May-7,

2013 only three weeks separated from ultimate effect. The President and Secretary

of Defense decided guilt in the Petitioner’s case by creating bias in the minds of the

panel members and put pressure to convict regardless of evidence. The pressure

created by the President not only extended to the court-iriaitial. trial process but

throughout the military appellate review process because their comments were seen

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3 See Appendix F “University of Illinois Law Review” Pg 227; Appendix H News Articles

1 See Appendix G Secretary of Defense Memorandum: “Integrity of the military Justice Process”;

Appendix H News Articles

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by officers as an “order” or a “directive” from the commander-in-qhie£ dictating what

he results expected of military leaders. This presumption of guilt fundamentally

changed constitutional law where a person is innocent until p to veil guilty beyond a

reasonable doubt, and made court-martial convening authorities and court-martial

panel members afraid to go against the publically announced directive of the

President and SECDEF. Unfortunately for Petitioner, since these comments

immediately preceded the court-martial the damage was done to the mind of the

panel member — the Presidential directive presumptively set the legal conditions

for implied bias, actual, or apparent UCI. This presumption of bias existed in a

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narrow window of time before a corrective memorandum was issued by the

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SECDEF, as demonstrated on record of Petitioner’s court-martial: : •r

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1. Panel Members admitted to hearing President Obama’s Comments on :

intolerance of military sexual assault and that he expected prosecut orial

results (Record of Trial (ROT) Vol. Ill, pg 33-132);

2. Some of the panel members characterized the President’s statements as a

military directive to take a more aggressive stance on sexual abuse (Record

of Trial (ROT) Vol. Ill, pg 33-132);

3. Some believed not enough was being done to prosecute allegations of sexual

assault (Record of Trial (ROT) Vol. Ill, pg!33-132);

4. Some members voiced they should do what the President asked them to do

(Record of Trial (ROT) Vol. Ill, pg 33-132).

Consequently, this bias manifested into the court-room where the alleged victim

a female noncommissioned officer in the U.S. Army Judge'Advocate-General

Corps, lied to panel members about the only conscious indicator she was allegedly

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sexually assaulted by Petitioner because “it burned” after sh’e douched. However,

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defense counsel'utterly failed to impeach her because forensic Reports and her own

self-report indicate she did not “douche.” Also, despite the: vague descriptions of how

the alleged sexual assault occurred there was absolutely no DNA-from Petitioner.

Also, U.S. Army Criminal Investigation Division (CID) agents testified there was

nothing of evidentiary value found connecting petitioner to alleged crime. Based on

the paucity of evidence and the false statement that went uncofrected as a to

material fact, the alleged crime was clearly not proven “beyond a reasonable doubt.”

In addition, to the fact Petitioner was found guilty of one charge of sexual assault

based on completely uncorroborated and testimony that was not descriptive and

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questionable, the panel members were particularly harsh by sentencing Petitioner

to 20-years of confinement.

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The prejudice Petitioner experienced at the trial court did not end, it continued

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into the military appellate process where under Article 66(d) UCMJ the Army Court

of Criminal Appeals (ACCA) is statutorily required to conduct a de novo review of

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the entire court-martial record to determine if the trial findings and sentence are

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legally and factually sufficient to sustain a conviction. After the Petitioner’s trial

there were a number of precedents in the military courts showing that the

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President and SECDEF’s comments on sexual assault in the military amounted to

command influence. However, the prejudice continued against Petitioner as the

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ACCA did apply the relevant precedent in reviewing Petitioner’s case for command

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influence which required the findings and sentence to be set aside.1 The following

precedents were applicable, but were not applied in the review oif Petitioner’s case:

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United States v. Corcoran, 2014 CCA LEXIS 901 (N-MCCA: 2014)' Xo.'

201400074, the military judge indicated in His findings of fact tliat there may

have been apparent command influence up until the SECDEF'memo was

published on 6 Aug 2013.

United States v. Bergdahl, 79 MJ 512; 2019 CCA LEXIS 297; ARMY

20170582 the court said: The military judge also found that as the

commander-in-chief of all the armed forces, he has the power to fire or take

adverse administrative action against any military officer involved in the

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trial of this case from sentencing forward (i.e. himself, the SJA, the convening

authority, and the judges of the Army Court of Criminal Appeals). The

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military judge therefore found appellant met his initial burden showing some

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evidence of UCI. The military judge found this a close call.

United States v. Bergdahl, 80 M.J. 230; 2020 CAAF LEXIS 489, No. 190406, the Court said: a sitting president of the United States can commit both

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apparent and actual unlawful command influence. The same held true for the

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late Senator McCain. Therefore, statements by such persons about a pending

case are perilous. Because of their capacity to influence decision makers in a

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court-martial, comments about a pending criminal matter pose a grave risk

to the goal of ensuring that justice is done in every case. Specifically,

improper statements could cause an innocent accused to suffer adverse

criminal consequences such as a wrongful conviction or an increased

sentence, or could cause a guilty accused to walk free-despite.the commission

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of heinous crimes-if the actual or apparent unlawful command influence

results in the dismissal of {80 M.J. 239} charges. See, e.g., Barry, 78 M.J. at

80 (dismissing sexual assault charge with prejudice for actual unlawful

command influence); United States v. Riesbeck, 77,M.J, 154, 167 (C.A.A.F,

2018) (dismissing charges of making a false official statement, rape by force,,

and communicating indecent language with prejudice for actual unlawful

command influence); Boyce, 76 M.J. at 253 (dismissing charges of rape and

assault consummated by a battery without prejudice for apparent unlawful

command influence).

The above precedents were not the only source of authority requiring Petitionei-’s

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case be set aside for UCI, there are other scholarly reports published that outlined

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the corrosive effect upon the military justice process.

5. In a Subcommittee justice report it was reported that:5 “Judge Advocates

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overwhelmingly report a perception of pressure on the convening authorities

to refer sexual assault cases to court martial, regardless of merit. According

to many of the judge advocates interviewed on site visits, this pressure

extends to weak cases that civilian jurisdictions would not prosecute and, in

some cases have already declined to prosecute. The vast majority of

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prosecutors and defense counsel who spoke with the Subcommittee ’have the

impression that this pressure causes convening authorities to :favor referral

to court-martial rather than deal with the potential adverse ramifications of

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5 See Appendix E “Report of Barriers to the fair administration of Mllitary: Justice is sexual assault '

case” Pg 14

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not referring a sexual assault case, such as career setbacks, media scrutiny,

the possibility of their non-referral decisions being subjected to elevated

review, or questions about why the case was not referred. These lawyers

suspect that commanders may feel that the cast of sending a case to trial,

regardless of merit, is perceived as “safe” and harmless with respect to the

parties involved and the justice system as a whole.... When asked what if

any, pressure is on commander replied that he felt the need to ‘do something

immediately’ or face harm to his career.”

6. In late 2013, Lieutenant General (Lt. Gen) Franklin was criticized by then

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Senator McCaskill for not sending a case of,sexual assault.to.Court-Martial.

Lt. Gen Franklin’s lack of judgment was called into question as well as his

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ability to hold command; he ultimately retired.6

7. Also in 2013, Senator McCaskill blocked the confirmation of Lt. Gen Helms

to Vice Commander, Air Force Space Command, because Lt. Gen Helms

overturned a sexual assault conviction she deemed unlawful7.

B. Proceedings Below

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1. In May 2013, then President Obama at a press conference made comments on

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sexual assault in the military. During a press conference he stated “I expect !

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consequences,” “So I don’t just want more speeches or awareness programs or

training, but ultimately folks look the other way. If we find out somebody’s

6 See Appendix E “Report of Barriers to the fair administration of Military Justice is sexual assault

case” Pgs 12-13

7See Appendix E “Report of Barriers to the fair administration of Military JuStict is sexual assault

case” Pg 13

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engaging in this, they’ve got be held accountable prosecuted,’strippe'd of their

positions, court-martialed, fared, and dishonorably discharged.”

2. Three weeks after the Presidents directives,> the Petitioner went to a

General Court Martial with an enlisted panel. Petitioner contrary to his plea was

found guilty of aggravated sexual assault, abusive sexual contact, and obstruction of

justice. The military panel adjudged confinement for 20 years, to be reduced to Pay

Grade E-l, to forfeit all pay and allowance, to be reprimanded, and to dishonorably

discharged. Petitioner raised on 1105/1106 matter to Convening Authority raising

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the facts of Unlawful Command Influence, the unknown male DNA, and that CID

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Agents testified about nothing of evidentiary value found connecting petitioner to

crime. Convening Authority action was denied.

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3. Appellant’s trial defense and appellate counsel did raise legal error to the

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Army Court of Appeals (ACCA) and the Court of Appeals for the Armed Forces

(CAAF) that President Obama’s and Secretary Hagel’s verbal directives to military

commanders established a presumption for implied bias of court-martial panel

members in military sexual assault cases. The Army Court of Criminal Appeal

denied petitioner’s appeal on March 28, 2016, United States v. Allen, No. 20130521.

The Court of Appeals for the Armed Forces denied review on July 25, 2016, United

States v. Allen, No. 16-0571/AR.

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Petitioner applied for reconsideration to The Court of Appeals for the Armed

Forces on judgment August 29, 2016, United States v. Allen, No. 16-0571/AR.

However, the initial legal briefs raising legal error did not contain the latest binding

legal precedent from military courts that specifically addressed the President V

Obama’s verbal order on sexual assault prosecutions in the military..Petitioner

requested extraordinary relief pro se writ of habeas corpus from Army Court of

Criminal Appeals, judgment entered on June 21, 2017, United States v. Allen, No.

20130521. Petitioner requested pro se motion for reconsideration en banc, from

Army Court of Criminal Appeals, judgment entered on January 31, 2018.

Petitioner motion for reconsideration to the Army Court of Criminal Appeals,

denied judgment entered on March 23, 2018, United States v. Allen, No. 20130521.

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Petitioner motion for reconsideration to Court of Appeals for the Armed Forces,

denied judgment entered on June 26, 2018, United States v. Allen, No. 16-0571/AR.

Appellant subsequently conducted research and found legal precedent only

acknowledge after initial briefs specifically relating to prejudicial legal error caused

by President Obama’s and the SECDEF’s comments on sexual assault in “Report of

Barriers to the fair administration of Military Justice is sexual assault case” a

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Subcommittee of the Judicial Proceedings Panel report that was published in May

2017 and a University of Illinois Law Review, “Justice is no longer Blind,” dated 29

January 2016. These reports cited cases that granted relief in courts-martial

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on the basis President Obama and the SECDEF’s comments on sexual assault

prosecutions biased panel members were used in Appellant’s Motion for

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Reconsideration in March 2018 to the Army Court of Criminal Appeal and Motion

for Reconsideration Court of Appeal for Armed Forces, submitted May 2018. Both

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military courts of review abused their discretion in failing to apply the relevant case

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law that established a presumption of bias existed in the npinds of court-martial,

panel members based on the totality of the circumstances creating bias and, actual

UCI in the minds of the panel members by their commanding officer — the

commander-in-chief, the President.

In the case of United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001) As

a matter of due process, an accused has a constitutional right, as well as a

regulatory right, to a fair and impartial panel. United States v. Mack, 41 M.J. 51

54 (CMA 1994); see RCM 912(f)(l)(N), Manual for Courts-Martial, United States

(2000 ed.). Indeed, "impartial court-members are a sine qua non for a fair courtmartial." United States v. Modesto, 43 M.J. 315, 318 (1995). That is not to say that

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an accused has a right to the panel of his choice, just to a fair and impartial panel.

Id.

After Petitioner submitted more evidence of UCI where other military courts

have said that then President Obama’s comments constituted apparent UCI and

placed an intolerable strain on the military justice system Petitioner then, went to

the federal system because military court would not review the submitted

documents.

4. The Petitioner case was denied in the federal courts because it did not

meet the Dodson factors and the court believed full and fair consideration was given

by the military. The U.S. District Court, District of Kansas, denied review,

judgment entered on June 30, 2023, Allen v. Payne et al.\ No. 23-3061-JWL.

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Request for reconsideration was denied, by U.S. District Court, District of Kansas,

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judgment entered on August 7, 2023, Allen v

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Payne et al., No. 23-3061-JVvL.

Petitioner requested for the Tenth Circuit to review case but was denied, Allen, v.

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Payne et al,. No. 23-3138, judgment entered on December' 4i. 2023. Petitioner

request for a panel rehearing was denied on

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January 20, 2024, Allen v. Payne et al,.

Court of Appeals for the Tenth CircuitSi.d|i|r|tered bn

No. 23-3138, U.S.

January 25, 2024.

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REASONS FOR GRANTING THE PETITlpH ,,;

Again, in the case of United States v.

LEXIS 489; No. 19-0406

process is rooted in

Bergdahl 80 M.J.'230; 2020 CAAF

the Court stated: “The concept of constitutional due :L

the notion of fundamental fairness, and this Court has long

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recognized this concern as

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it pertains to unlawful command influence. "The exercise

of command influence tends to deprive

rights." United States v.

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servicemembersofltheir;^titutional:

Thomas, 22 M.J. 388, 393 (C.M.A. 1986): "Pin the military

justice system both the right to

objectively seen to be fair, have

a trial that is fair, and the right to a trial that is

constitutional dimensions sounding m due process.

Boyce, 76 M.J. at 249 n.8. Congress's "prime motivation for establishing a civilian

Court of Military Appeals was to erect a

command influence

further bulwark against impermissible

« Thomas 22 M.J. at 393.” Actual unlawful command influence

under the totahty of the circumstances, the evidence would lead a

occurs when,

reasonable person to conclude that command influence affocted the disposition of a

Based on this legal standard, the President

case and prejudiced the accused,

t-martial findings and sentences is not just limited to

influencing officers about cour

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the deliberating room, it also affects senior leaders who convene court-martials and

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are ultimately responsible to approve and disapprove the^findings.and sentence

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pursuant to approve or disapprove the findings and sentences pursuant to Article

60 UCMJ. A general court-martial convening authority Rear Admiral (Ret) Patrick

Lorge was quoted as saying, “he felt pressured by his staff attorneys, Cmdr.

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Dominic Jones and Lt. Cmdr. Jon Dowling, to rubber stamp the [court-martial]

decision, but that he also fretted ‘about the impact to the Navy if I were to

disapprove the findings.’” Rear Adm. Lorge was also quoted’saying “At the time,

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the political climate regarding sexual assault in the military was such that a

decision to disapprove findings, regardless of merit, would bring hate and

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discontent on the Navy from the president, as well’as senators including Senator

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Kirsten Gillibrand.”8

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This was a "close" case, Petitioner and the alleged victim were both

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noncommissioned officers in the U.S. Army and both military legal specialists

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attending a class at the Judge Advocate General’s Legal Center and School |n.

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Charlottesville, VA when the alleged sexual assault occurred. The alleged victim

claimed she was incapacitated by excessive drinking of alcoholic beverages and then

sexually assaulted by Petitioner. However, despite her description of the alleged

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event and extensive sampling for DNA upon her and the Crime scene, there was no

DNA from Petitioner found. U.S. Army Criminal Investigation Division (CIO)

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investigators testified at the court-martial nothing of evidentiary value was found

connecting Petitioner with the crime. Otherwise, there was no other evidence other

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8 Appendix H News Article

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than uncorroborated testimony of the alleged victim Whos^ testimony''was not

credible or improbable based on the utter lack of physical1 evidence cotinectihg

Petitioner with her vague description of events, and the Vllegbd victiih lied to courtmartial panel members about how she “recollected” a sexual assaulted occurred —

because after the alleged event she, “douched” and it burned when she “douched.”

However, evidence clearly shows the alleged victim in her own sexual assault nurse

exam questionnaire she filled out only hours after the alleged event shows she did

not “douche,” but counsel representing Petitioner failed to impeach the alleged

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victim and the prosecution did not correct this false but material statement.

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Clearly, there is “reasonable doubt” no crime occurred at all. The. utter lack of

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evidence was known to the panel members and the convening authority who

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approved the findings of guilt, but because of the President and the SECDEF’s

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prejudicial statements, no military officer involved in Petitioner’s court-martial was

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going to risk their career by disobeying the commander-in-chief, so in that regard

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the President who appointed these panel members and the court-martial convening

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authority was virtually brought into the deliberation roorri.

Apparent UCI occurs when reasonable members of the public believe command

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influence prejudiced the accused. The military courts have ruled, within the cases

cited in this petition President Obama’s words constituted apparerit UCI and

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accordingly case law mandates Petitioner’s case be set aside for retrial, or remanded

for review on the merits by the federal courts because military appellate courts

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abused their discretion by not applying appropriate law to this case, and the district

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court simply refuse to review this case on its merits, despite' df binding case law that

justifies review of the matter for UCI and its prejudice ilpoh'the‘findings and

sentence of this case. The words of the President and SECURE resona ting in the‘ ■ •:

ears of military officers sitting in judgment of Petitioner’s sexual assault case was

an impossible hurdle to overcome, and there were no steps before, during, or after

voir dire to cure the Unlawful Command Influence created by the President in the

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minds of the court-martial panel members.

So I beg this Court to recognize and hold President Obama and the SECDEF to a

strict liability standard that applied to certain UCI due to their comments on sexual

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assault prosecutions, when they said it, and said it to a specific audience that

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infected Petitioner's court-martial and its panel members by directing, only three

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weeks before Petitioner’s court-martial trial, military officers should exercise

prejudice for sexual assault prosecutions at courts-martial. The prejudicial effect of

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the President and the SECDEF’s words upon courts-martial was recognized in the

military courts that merits relief in Petitioner’s case. This precedent should have

been applied in the Article 66(d) UCMJ review of Petitioners1 Case by the military

appellate courts, but was not, and the federal courts refuse to even crack open this

case to review on its merits, because of a court-created rule in the 10th Circuit; the

four “Dodson” factors. The bias created by the President in the minds of the panel

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members moved the fulcrum-point of the scales for a cloSe case that was not proven

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beyond a reasonable doubt because of the paucity of evidence used to convict : ' •

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Petitioner was solely based on vague, unreliable, and uncorroborated testimony that

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is incredible because there is absolutely no DNA evidence, from .Petitioner to connect

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him to the alleged crime or the description of the crime.

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Petitioner beg for this petition to be granted just.as otherService courts

recognized the President and SECDEF words created Unlawful Command influence

which is a nearly impossible hurdle to overcome at trial... The law concerning UCI

was not applied in this case and tested for bias by weighing the totality of facts and

circumstances, against the paucity of evidence used to convict Petitioner. :

CONCLUSION

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For the above reasons, the petition for a writ of certiorari;should be granted

Respectfully Submitted,

A;'"-.,':,

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EVERALD S. ALLEN JR.,

.Coin

Pro Se

United States Disciplinary Barracks

1300 N. Warehouse Roadv ' ':o .'.

Fort Leavenworth, KS 66027

Dated: April 10,2024

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.