Opposition Brief — Jones v. United States

: Supreme Court, U.S.

0) ‘Y) r BILED

Nos. 86-825 and 86-826 : 21 1987

Iu the Supreme Court of the United BME oe

OCTOBER TERM, 1986 a

GREGORY JONES AND BYRON K. WARE, PETITIONERS

Vv.

UNITED STATES OF AMERICA

Rocer E. THOMAS, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

NORMAN G. CooPER

Col., JAGC, USA

Gary F. RoBERSON

Lt. Col., JAGC, USA

PaTRIcK A. HEWITT

Capt., JAGC, USA

PATRICK D. O’HARE

Capt., JAGC, USA

SAMUEL J. Ros

Capt., JAGC, USA

Erik M. STUMPFEL

Capt., JAGC, USA

Appellate Government Counsel

Government Appellate Division

United States Army Legal Services Agency

Falls Church, VA 22041-5013

/

}

'

;

QUESTIONS PRESENTED

1. Whether, on the facts of this case, the court-

martial convening authority was disqualified as an

“accuser” within the meaning of Article 1(9) of the

Uniform Code of Military Justice (UCMJ), 10

U.S.C. 801(9).

2. Whether the courts below erred in applying the

constitutional harmless error standard of Chapman

v. California, 386 U.S. 18 (1967), to instances of un-

lawful command influence, in violation of Article 37,

UCMJ, 10 U.S.C. 837, rather than in applying a

rule of per se reversal.

(1)

TABLE OF CONTENTS

Page

SAREE TERA a SR 1

a GR pS 2

EET RO 2

ec camnnin 9

Na stnsidawienitannanbinionn 22

TABLE OF AUTHORITIES

Cases:

Beck v. Washington, 369 U.S. 541 (1962) 14

Brookins vy. Cullins, 28 C.M.A. 216, 49 C.M-R. 5

Neen ne es ralaiecaseneemnertene 12

Calley v. Callaway, 519 F.2d 184 (5th Cir. 19 75),

cert. denied; 425 U.S. 911 (1976) _.._______ =” 18

Chapman yv. California, 386 U.S. 18 (1967)... 8, 17

Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982) 13

Crane v. Kentucky, No. 85-5238 (June 9, 1986) __ 19

Delaware v. Van Arsdall, No. 84-1279 (Apr. 7,

1986) __ vat ais 6 al co eee 19

Engels v. “United ‘States, 678 F.2d 173 (Ct. Cl.

1982) _ vo ie 18

Homey V. Resor, 455 F.2d 1345 (D.C. ‘Cir. 1971). 18

Rose v. Clark, No. 84-1974 (July 2, 1986) _.__ 19

Rose Vv. Mitchell, 443 U.S. 545 (1979) 3B et ae ano 14

Rugendorf v. United States, 376 U.S. 528 (1964) - 19

Smith v. Phillips, 455 U.S. 209 (1982)... >> 14

Tollett v. Henderson, 411 U.S. 258 (1973) SEITE 13

United States v. Cansdale, 7 M.J. 143 (C.M.A.

1979) _ 11-12

United States \ V. Comm. 6 M. J. 351 (C. M. A. 1979). ; 12

United States v. Corcoran, 17 M.J. 187 (C.M.A.

1984) ee | ap

United States v. Crossley, 10 MJ. 376 (C. M. Pa

| cE ESE IE Se a OL PEE 11

United States v. Dubay, 17 C.M.A. 147, 37 C.M.R.

411 (1967) -

(11)

IV

Cases—Continued: Page

United States v. Ellsey, 16 C.M.A. 455, 37 C.M.R.

75 (1966) 3

United States v. Gordon, 1 C.M.A. 255, 2 C.M.R.

161 (1952) _. DBS Ralph ge itis SIRT Were Lakes coe. 13,12

United States v. Hardin, 7 M.J. 399 (C.M.A.

1979) 13

United States v. Kennedy, 21 M.J. 879 (A.C.M.R.

Ns tO SS ot els AS Ra ch ORS ILA heat 6

United States v. McClain, 22 M.J. 124 (C.M.A.

1986) 18

United States v. McClenny, 5 C.M.A. 507, 18

C.M.R. 131 (1955) _. Ae eda 12

United States v. Mechanik, No. 84- 1640. (Feb. 75.

1986) 14

United States v. Reed, 2 M.J. 64 (C.M.A. 1976) _ 12

United States v. Sherman, 21 M.J. 787 (A.C.M.R.

1986) _ 6

United States v. Thompson, 19 M.J. 690

(A.C.M.R. 1984), new review and action or-

dered, CM 444070 (A.C.M.R. Oct. 9, 1986)........ 16

United States v. Treakle, 18 M.J. 646 (A.C.M.R.

1984), remanded, No. 47978 (C.M.A. Sept. 22,

1986) ana 4,5, 7, 20

United States v. Valenzuela-Bernal, 458 U.S. 858

(1982) ; 19

United States v. Yslava, 18 M.J. 670 (A.C.M.R.

1984), remanded, No. 50410 (C.M.A. Sept. 25,

Raat Asa heads terse RD OTR EEE Re BRUIT 3, 6, 13

Wayte v. United States, 470 U.S. 598 (1985)_.__. 13

Statutes, regulation, and rule:

Articles of War, art. 8, 10 U.S.C. (1946 ed.)

SUI ssh cc nae 11

Uniform Code of ‘Military “Justice, 10 USC. (&

Supp. SII) 801 et seq.:

Art. 1(9), 10 U.S.C. 801(9) ____ 3, 8, 10, 12, 17, 21

Att. 22, 10 U.S, 632... 10

Art. 22(b), 10 U.S.C. 822(b) —.._.______._... 10, 11

Art. 23, 10 U.S.C. 828 _____.__ lke diate 10

Art. 23(b), 10 U.S.C. 828 (5) —. 10, 11

Vv

Statutes, regulation, and rule—Continued: Page

Art. 26(c), 10 U.S.C. (Supp. III) 826(c) 19

Art. 32, 10 U.S.C. 832 3

Bat: TE: 3S as Se kee 3

Art. 34, 10 U.S.C. (Supp. III) 834 3

Ae. Fa Oe es EE tee 6, 17,18

Art. 37 (a), 10 U.S.C. 837 (a) 7,2

Ps 9 TR 328 Pe ee acd Ecce ee

Art. 60(a), 10 U.S.C. 869(a) — > __ 18

Art. 64(b), 10 U.S.C. (Supp. II) 864(b) 8

Be EE Bias We betes dcccatie cece cadsaseicceiaeaniatencinieoncete 18

Dep’t of Army Reg. 27-10, para. 6-2 (Sept. 25,

1986) conati ms uf 20

Miscellaneous:

Manual for Courts-Martial, United States—1984.. 3

16 Op. Att’y Gen. 106 (1918) aoe 11

S. Rep. 486, 81st Cong., Ist Sess. (1949) _....__--___ 18

|

In the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-825

GREGORY JONES AND BYRON K. WARE, PETITIONERS

Vv.

UNITED STATES OF AMERICA

No. 86-826

ROGER E.. THOMAS, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Military Appeals (Pet.

App. la-19a)* in United States v. Thomas, United

States v. Cook, and United States v. Giarratano is

reported at 22 M.J. 888. The opinions of the Court of

Military Appeals in the remaining cases (Pet. App.

47a, 52a, 59a, 68a-69a, 76a, 88a, 92a, 104a) are

unreported.

1 Unless otherwise noted, “Pet. App.” refers to the appendix

to the petition in No. 86-826.

(1)

2

JURISDICTION

The judgment of the Court of Military Appeals in

No. 86-826 in the cases of petitioners Thomas, Cook,

and Giarratano was entered on September 22, 1986

(86-826 Pet. App. la). The judgments in No. 86-

825 and in the remaining cases in No. 86-826 were

entered between September 23, 1986, and October 10,

1986 (86-825 Pet. App. 21a, 22a; 86-826 Pet. App.

A7a, 52a, 59a, 68a, 76a, 88a, 92a, 104a). The peti-

tions for writs of certiorari in No. 86-825 and No.

86-826 were filed on November 21, 1986. The juris-

diction of this Court is invoked under 28 U.S.C.

(Supp. II) 1259(8).

STATEMENT

1. The 13 petitioners are soldiers under the con-

trol of the Third Armored Division of the United

States Army stationed in Germany. They were con-

victed in separate courts-martial of various crimes

under the Uniform Code of Military Justice

(UCMJ).’ Petitioners’ claims stem from the com-

ments and activities of the court-martial convening

authority, Major General Thurman E. Anderson, and

his subordinates prior to petitioners’ separate trials.®

* Eleven of the 13 petitioners pleaded guilty to the charges

against them. Petitioners Giarratano and McCallum pleaded

not guilty. Giarrantano was tried before a military judge sit-

ting as a special court-martia', and McCallum was tried be-

fore a general court-martial composed of officer members.

Pet. App. 33a, 71a-72a.

3 In conjunction with his assumption of command, General

Anderson became the general court-martial convening author-

ity. The convening authority is the officer who has authority

to convene a court-martial. This position in the military jus-

tice system has no civilian counterpart. The duties of the

convening authority have been characterized as both judicial

3

a. Major General Anderson assumed command of

the Third Armored Division, headquartered in Frank-

furt, Germany, on February 19, 1982. During the

period from April to December 1982, General Ander-

son spoke at approximately ten different meetings,

held at different locations throughout his command,

at which the topic of testifying on behalf of accused

soldiers at courts-martial was raised. General An-

derson’s extemporaneous remarks were typically made

in the course of lectures and discussions on a variety

of topics. As the Court of Military Appeals summar-

ized (Pet. App. 2a-8a), General Anderson “found it

paradoxical for a unit commander, who had recom-

mended that an accused be tried by a court-martial

authorized to adjudge a punitive discharge, to later

appear as a defense character witness at the sentenc-

ing stage of the trial, testify as to the accused’s good

character, and recommend that the convicted soldier

and quasi-prosecutorial. See United States v. Yslava, 18 M.J.

670, 674 (A.C.M.R. 1984) (en banc), remanded, No. 50410

(C.M.A. Sept. 25, 1986), new review and action ordered, No.

44515 (A.C.M.R. Oct. 15, 1986); United States v. Ellsey, 16

C.M.A. 455, 37 C.M.R. 75 (1966). The convening authority

receives criminal charges from an “accuser,” usually an ac-

cused’s immediate commander, along with recommendations

from the defendant’s chain of command as to an appropriate

disposition. The convening authority ultimately decides

whether there is sufficient evidence to justify a court-martial

and, if so, what level of court-martial is appropriate. This

process is known as “referral.” See Arts. 1(9), 32, 33, 34,

UCMJ, 10 U.S.C. (& Supp. III) 801(9), 832, 833, 834. The

convening authority has a variety of other duties affecting

the court-martial proceeding, which include selecting the

court-martial members (if the accused requests a panel), ap-

proving pretrial agreements, and granting immunity. See

Rule 503 (a) (1), 705(a), 704(c), Manual for Courts-Martial,

United States—1984.

ee “ON en ARS tn nn ee reer rrr e————eEeEEeEeEeEeEEEEEE——

4

be retained in the service.” The court noted that

“Cs]Jome of General Anderson’s remarks were elab-

orated upon and possibly distorted by his subordinates.

Be that as it may, his comments were later inter-

preted, or misinterpreted, to reflect an intent that a

commander, first sergeant, or other person from an ac-

cused’s unit, should not give favorable presentencing

testimony on behalf of an accused. This interpreta-

tion may have also extended to findings” at the guilt

stage of courts-martial (id. at 3a) .*

b. In late January or early February 1983, a mili-

tary defense attorney in the course of a pretrial in-

terview discovered that a noncommissioned officer be-

lieved that a policy existed in the Third Armored

Division against servicemen offering favorable testi-

mony at a court-martial in a defendant’s behalf

(Giarratano Tr. 827-828). The matter was brought

to the attention of, and rectified by, the staff judge

advocate, who regarded the matter as an isolated in-

cident (McCallum Gov’t C.A. Exh. 1, at 2). On

February 28, 1983, however, the staff judge advocate

became aware of a policy letter issued by the Third

Armored Division command sergeant major, a sub-

ordinate of General Anderson, which discouraged

noncommissioned officers from providing character

* While no transcripts of Genera] Anderson’s remarks exist,

the interpretations given his comments by those in attend-

ance can be found in the testimony of witnesses and the ex-

hibits filed in the course of subsequent litigation, particularly

in the trial record in petitioner Giarratano’s case. The mili-

tary trial and appellate courts have extensively detailed the

facts surrounding General Anderson’s comments. These facts,

and the effect they had on witnesses, are discussed in United

States v. Treakle, 18 M.J. 646, 649-653 (A.C.M.R. 1984) (en

banc), remanded, No. 47978 (C.M.A. Sept. 22, 1986).

5

testimony in a defendant’s behalf (ibid.).° At Gen-

eral Anderson’s direction, immediate steps were taken

to correct any misperceptions stemming from his

remarks and from the command sergeant major’s

policy letter (ibid.),° although those measures were

later determined to have been ineffective (Giarratano

Tr. 1444-1445).

On March 14, 1983, General Anderson was inter-

viewed by nine attorneys from the Army Trial De-

fense Service regarding the comments attributed to

him (Giarratano AX 65). When questioned about

the purpose of his comments, General Anderson ex-

*On January 25, 1983, Command Sergeant Major Haga is-

sued Noncommissioned Officers Professionalism Program Let-

ter 16, entitled Personal Conduct and Integrity (Giarratano

AX 12). As an enclosure to the letter, Sergeant Haga pro-

vided a list of “do’s and don'ts,” one of which stated that non-

commissioned officers do not “stand before a court martial

jury * * * and state that even though the accused raped a

woman or sold drugs, he is still a good soldier on duty”

(ibid.). General Anderson did not see, review, or approve

of that letter before it was issued, and he did not learn of its

existence until March 1, 1983. Treakle, 18 M.J. at 651.

* The Army Court of Military Review explained in Treakle

(18 M.J. at 652): “Attempts were made to stop further dis-

tribution of the letter. The staff judge advocate personally

called subordinate commanders to advise them to disregard

the letter and to expect a written retraction.” At meetings

with subordinate commanders and senior noncommissioned

officers on three occasions in early 1983, the general empha-

sized that there was no policy against testifying favorably

for accused persons at courts-martial and that any such im-

pression created by previous statements or letters was errone-

ous. He also emphasized that there was a legal and moral

obligation to testify favorably. The Division command ser-

geant major met with senior noncommissioned officers on

March 10, 1988, and advised them to disregard that part of

his letter involving testifying at courts-martial. /bid.

plained that he found it inconsistent for a comman-

der to recommend that a soldier be subjected to a

court-martial at which he could receive a punitive

discharge and subsequently to testify on the soldier’s

behalf that he should be kept in the Army (id. at

11). In addition, on March 4 and September 15,

1983, General Anderson issued command policy let-

ters emphasizing the obligation to testify in an ac-

cused soldier’s behalf (Giarratano AX 49-50).

Litigation over this matter soon followed.” On Oc-

tober 2, 1983, extensive litigation of the command

influence issue began in the special court-martial of

petitioner Giarratano.* After receiving and consid-

ering extensive evidence concerning Giarratano’s

command influence motion, the trial judge found

that General Anderson was not disqualified from

serving as the convening authority (Giarratano Tr.

1438). Nonetheless, the trial judge found that Gen-

eral Anderson’s remarks amounted to unlawful com-

mand influence, in violation of Article 37, UCMJ, 10

U.S.C. 837 (Giarratano Tr. 1442, 1447). The trial

judge found by clear and convincing evidence, how-

ever, that petitioner’s chain of command was not

affected by General Anderson’s remarks (id. at

1447).

The command influence issue was also litigated

in the case of petitioner Ivy (Pet. App. 42a-46a) and

*See United States v. Sherman, 21 M.J. 787 (A.C.M.R.

1986) (tried Mar. 28, 1983); United States v. Yslava, supra

(tried June 9, 1983); United States v. Kennedy, 21 M.J. 879

(A.C.M.R. 1986) (tried July 5, 1983).

* The trial lasted 14 days between October 2 and December

10, 1983, and involved 54 witnesses, 123 exhibits, and over

1400 pages of testimony, nearly all of which was devoted to

the command influence issue.

7

others. In some cases, including that of petitioner

Smith (Pet. App. 50a), defense counsel were aware

of this issue, but elected not to raise it. Litigation

of the issue continued even after General Anderson’s

departure from command in March 1984.

ce. On June 29, 1984, the Army Court of Military

Review in United States v. Treakle, 18 M.J. 646

(A.C.M.R. 1984), determined that General Anderson

was not disqualified as an “accuser” from participat-

ing in the referral process (18 M.J. at 655). The

court recognized that General Anderson had at-

tempted to correct what he perceived to be a com-

mand influence problem, and it found that his orig-

inal comments were “marked by confusing communi-

cation rather than deliberate attempts to pervert the

military justice system” (ibid.). While recognizing

that the interpretation given to General Anderson’s

remarks varied widely (id. at 650-651), the court

determined that General Anderson’s comments could

reasonably have been understood to discourage serv-

icemen from offering favorable character testimony

in a defendant’s behalf and therefore amounted to

unlawful command influence, in violation of Article

37(a), UCMJ, 10 U.S.C. 887(a).° Subsequent liti-

* Article 37(a) provides, in pertinent part:

No authority convening a general, special, or summary

court-martial, nor any other commanding officer, may

censure, reprimand, or admonish the court or any mem-

ber, military judge, or counsel thereof, with respect to

the findings or sentence adjudged by the court, or with

respect to any other exercises of its or his functions in

the conduct of the proceedings. No person subject to

this chapter may attempt to coerce or by any unauthor-

ized means, influence the action of a court-martial or any

other military tribunal or any member thereof, in reach-

ing the findings or sentence in any case, or the action of

8

gation of the command influence issue in the Army

Court of Military Review has resulted in 35 pub-

lished opinions. That court and the Court of Military

Appeals have awarded defendants some form of re-

lief in all but 37 of the 219 cases reviewed to date.”

2. On September 22, 1986, the Court of Military

Appeals, after noting the extensive remedial actions

by the Army Court of Military Review, affirmed the

convictions of petitioners Thomas, Cook, and Giar-

ratano (Pet. App. la-19a). The Court of Military

Appeals concluded that General Anderson had only

an official interest in petitioners’ trials and was

therefore not disqualified from serving as the con-

vening authority under Article 1(9), UCMJ, 10

U.S.C. 801(9) (Pet. App. 7a-8a). The Court of

Military Appeals also concluded that the harmless

error standard of Chapman vy. California, 386 U.S.

18 (1967), rather than a rule of per se reversal, was

appropriate in the case of unlawful command influ-

ence. Applying that standard, the Court of Military

Appeals found beyond a reasonable doubt that the

findings and sentences in the cases of petitioners

Thomas, Cook, and Giarratano were not affected by

command influence (Pet. App. 14a-16a). The court

affirmed the convictions of the remaining petitioners

any convening, approving, or reviewing authority with

respect to his judicial acts.

%” The relief granted included post-trial evidentiary hear-

ings pursuant to United States v. Dubay, 17 C.M.A. 147, 37

C.M.R. 411 (1967), to determine whether General Anderson’s

actions had any effect on a defendant’s case; new post-trial

reviews and actions by a different convening authority pursu-

ant to Article 64(b), UCMJ, 10 U.S.C. (Supp. III) 864(b);

rehearings as to sentence; new trials; sentence reassessments

by the Army Court of Military Review; and remedial action

by the Judge Advocate General.

9

on the basis of its decision in Thomas (Pet. App.

47a, 52a, 59a, 68a-69a, 76a, 83a, 92a, 104a).

ARGUMENT

This case demonstrates the ability and the willing-

ness of the military justice system to discover and

remedy instances of improper command influence.

In a thoughtful and comprehensive opinion, the

Court of Military Appeals conducted a careful ex-

amination of this unusual incident and its potential

effects on courts-martial within the Third Armored

Division. At the conclusion of that review, the court

determined that the Army trial and appellate courts

had taken the necessary steps to ensure that no serv-

icemember was denied a fair trial." The decision

11JTn each of petitioners’ cases, the Army Court of Military

Review and the Court of Military Appeals specifically found

that the relief granted was sufficient to cure any prejudice

arising from General Anderson’s comments, or that no relief

was warranted.

Petitioners Thomas, Thompson, Holmes, and Jones were

given rehearings as to their sentence and new post-trial re-

views by a different convening authority (Pet. App. 14a, 23a-

24a, 26a, 56a, 59a, 79a, 82a; 86-825 Pet. App. 24a). Petition-

ers McCallum, Schlote, Shepherd, and Ware received new post-

trial reviews and actions by a different convening authority

(id. at 72a, 89a, 95a; 86-825 Pet. App. 28a). Petitioner Defi-

baugh received a post-trial evidentiary hearing pursuant to

Dubay to determine whether General Anderson’s remarks had

any effect on his case. The hearing showed that the remarks

did not affect Defibaugh’s trial (id. at 63a-64a, 66a-67a, 68a).

Petitioner Cook had his sentence reassessed by the Army

Court of Military Review, resulting in his not receiving a bad

conduct discharge (id. at 30a). Petitioner Ivy litigated this

issue at trial, and the trial judge rejected his motion to dis-

miss the charges. The Army Court of Military Review found

that General Anderson’s actions did not affect Ivy’s convic-

tions on the charge as to which he had pleaded guilty, but

|

10

of the Court of Military Appeals, upon which we

largely rely, is correct and does not warrant further

review. Moreover, that court’s resolution of statu-

tory and procedural issues unique to the military

justice system is entitled to considerable deference

by this Court. Finally, the relief afforded by the

courts below is sufficient to cure any prejudice peti-

tioners could have suffered. Accordingly, further re-

view is not warranted.

1. Petitioners contend (86-826 Pet. 11-18) that

General Anderson should have been disqualified from

acting as the convening authority in their cases on

the ground he was an “accuser” within the meaning

of Articles 22(b) and 23(b), UCMJ, 10 U.S.C.

822(b) and 823(b). That claim lacks merit.

The question whether an officer is an “accuser’’ is

entirely a matter of statutory construction. Articles

22 and 23, UCMJ, 10 U.S.C. 822 and 823, list the

persons who may convene a general or special court-

martial. Articles 22(b) and 23(b) provide that, if

an officer is an “accuser,” he may not order a gen-

eral or a special court-martial, and a superior officer

shall instead make that decision. The term “ac-

cuser” is defined in Article 1(9), UCMJ, 10 U.S.C.

801(9); it includes any person who signs and swears

to charges, any person who directs that charges be

signed and sworn to by another, and “any * * * per-

the court dismissed Ivy’s conviction on the charge as to which

he had been convicted after pleading not guilty (id. at 54a-

46a). Petitioner Giarratano litigated the issue at trial. The

trial judge ordered that certain remedial action would be

taken to offset any prejudice, including post-trial review by

a different convening authority (id. at 16a, 34a-36a). Only

| petitioner Smith received no relief. Smith, however, declined

to raise the issue at trial “ ‘for ta[c]tical and strategic pur-

poses’” (id. at 50a, 52a).

11

son who has an interest other than an official inter-

est in the prosecution of the accused” (Pet. App.

7a).

The Court of Military Appeals has consistently

interpreted the term “accuser” to disqualify only

those officers who have a personal interest in the

outcome of the case. The leading case construing

that term is United States v. Gordon, 1 C.M.A. 255,

2 C.M.R. 161 (1952). There, the Court of Military

Appeals analyzed Article 8 of the Articles of War,

10 U.S.C. (1946 ed.) 1479, the statutory predecessor

to Articles 1(9), 22(b), and 23(b) of the UCMJ.

Article of War 8 provided that, when a commander

authorized to appoint a general court-martial was

the accuser of the person to be tried, the court was

to be appointed by a superior competent authority.

After examining the origin and history of that

standard,” the Court of Military Appeals concluded

that a convening authority was disqualified as an

“accuser” when, on the facts and circumstances of

the ease, he was so closely connected to the offense

that ‘‘a reasonable person would impute to him a

personal feeling or interest in the outcome of the

litigation” (Gordon, 1 C.M.A. at 260, 2 C.M.R. at

166). Since its decision in Gordon, the Court of

Military Appeals has consistently applied that stand-

ard to determine whether a convening authority was

disqualified from referring a case to trial.”

12 For example, in 1918 the Attorney General concluded that

an “accuser” should not have “‘any personal feeling or interest

in the conviction of the [accused].” 16 Op. Atty Gen. 106,

110, quoted in Gordon, 1 C.M.A. at 259, 2 C.M.R. at 165.

13 See, e.g., United States vy. Corcoran, 17 M.J. 137, 138

(C.M.A. 1984); United States v. Crossley, 10 M.J. 376, 378

(C.M.A. 1981); United States v. Cansdale, 7 M.J. 148, 145

12

The Court of Military Appeals correctly applied

the standard adopted in Gordon to petitioners’ cases.

Nothing in General Anderson’s remarks supports the

claim that he had a personal interest in the outcome

of any of these cases. As the Court of Military Ap-

peals explained (Pet. App. 7a), General Anderson

was not the victim of a crime (United States v.

Gordon, supra) or the person who gave an order

that was willfully disobeyed (United States v.

Corcoran, 17 M.J. 187 (C.M.A. 1984)). Rather, his

remarks were directed to what he perceived as a

general practice followed by unit commanders, not

to the facts of any particular case. Those remarks

would not lead a reasonable person to conclude that

General Anderson had an interest in seeing any par-

ticular servicemember prosecuted or sentenced in

any particular manner.

Petitioners contend (85-826 Pet. 11-18) that the

Court of Military Appeals adopted an unduly nar-

row construction of Article 1(9), and they claim

that General Anderson should have been disqualified

under that Article because he was “impliedly biased.”

As the convening authority responsible for referring

cases to courts-martial, General Anderson performed

the same role that the grand jury serves in the civil-

ian justice system. He should have been disqualified

from performing that role, petitioners argue, be-

cause his views on character evidence rendered him

unable to make an unbiased decision whether to

refer the charges against them to a court-martial.

That argument is flawed in several respects.

(C.M.A. 1979) ; United States v. Conn, 6 M.J. 351, 354 (C.M.A.

1979); United States v. Reed, 2 M.J. 64, 68 (C.M.A. 1976);

Brookins v. Cullins, 23 C.M.A. 216, 218, 49 C.M.R. 5, 7 (1974);

United States v. McClenny, 5 C.M.A. 507, 511, 18 C.M.R. 131,

135 (1955).

18

To begin with petitioners’ analogy is flawed. A

convening authority is not the factfinder; instead,

his role during the referral and pretrial process has

been compared to that of a prosecutor. See Cooke v.

Orser, 12 M.J. 335, 343 (C.M.A. 1982); United

States v. Hardin, 7 M.J. 399, 404 (C.M.A. 1979);

United States v. Yslava, 18 M.J. 670, 674 (A.C.M.R.

1984). The appropriate parallel, therefore, is not to

a claim that the factfinder was impliedly biased, but

to the claim that the prosecutor was animated by an

invidious motive. See Wayte v. United Siates, 470

U.S. 598 (1985). Petitioners have not made that

claim, however, and General Anderson’s remarks

would not support such a claim if it had been made.

In addition, 11 of the 13 petitioners pleaded guilty

to the crimes for which they were convicted (page

2 note 2, supra) and therefore may not claim

that their convictions should be reversed on this

ground. See Tollett v. Henderson, 411 U.S. 258

(1973) (guility plea waives claim of grand jury

discrimination).“* The two remaining petitioners

(Giarratano and McCallum) had an opportunity to

demonstrate that General Anderson was actually

1*The Army Court of Military Review found (where the

claim was raised) that petitioners’ decisions to plead guilty

were not affected by General Anderson’s remarks, and the

Court of Military Appeals upheld the decisions of the Court

of Military Review (86-825 Pet. App. 2la, 22a, 24a, 28a;

86-826 Pet. App. 14a, 23a, 31a, 44a-45a, 47a, 50a, 52a, 55a,

59a, 67a, 68a, 79a, 82a, 88a, 87a, 92a, 10la, 104a). The Court

of Military Appeals also found (Pet. App. 10a) no evidence

that General Anderson intended by his actions to induce

guilty pleas. And none of these petitioners has argued in

this Court that his guilty plea was coerced by General Ander-

son’s actions or was inaccurate in any respect. Accordingly,

these petitioners have waived their claim of implied bias.

14

biased against them, and the opportunity to make

such a showing is all that due process generally re-

quires (see Smith v. Phillips, 455 U.S. 209 (1982)).

In their cases, the courts below found that General

Anderson’s actions had no effect on the outcome of

their trials (Pet. App. 16a, 35a-36a, 74a, 76a).

There is no evidence that General Anderson har-

bored any prejudice of any type towards petitioners,

or that he was even aware of them before their cases

were presented to him in his capacity as convening

authority for referral to a court-martial. Petitioners

do not argue to the contrary.

Finally, even assuming that the decision of a con-

vening authority to refer a case to a court-martial

should ever be set aside on the ground that he was

impliedly biased (but cf. United States v. Mechanik,

No. 84-1640 (Feb. 25, 1986); Beck v. Washington,

369 U.S. 541, 548-549 (1962) (requiring the de-

fendant to establish actual bias on a claim that his

conviction should be reversed because the grand jury

was exposed to prejudicial publicity) ), petitioners

have failed to demonstrate that this is an appropri-

ate case in which to adopt such a rule.” There is no

allegation in any of these cases that charges were

inappropriate or were unsupported by the evidence

presented to General Anderson. Nothing in his

statements suggests that General Anderson had pre-

judged petitioners’ guilt or had referred their cases

15 Petitioners also argue (86-826 Pet. 22-24) that com-

mand influence should be subjected to the same standard of

review as racial prejudice in a grand jury proceeding (Rose

v. Mitchell, 443 U.S. 545 (1979)). The policy against un-

lawful command influence does not rise to that level. Cf.

United States v. Mechanik, slip op. 5 n.1.

15

to a court-martial for an improper reason.’® Fur-

thermore, unlike the case in which the convening

authority is the victim of a crime, there is no reason

to presume that General Anderson was incapable of

16 The incidents that petitioners use (86-826 Pet. 6-7) to il-

lustrate General Anderson’s intense interest in military jus-

tice do not relate to any of petitioners’ cases. Furthermore,

the incidents referred to do not reflect any personal interest in

the outcome of any case, or bias on General Anderson’s part.

The first incident, which involved a sergeant driving under

the influence of alcohol and leaving the scene of an accident,

occurred during one of many routine unannounced inspec-

tions conducted by General Anderson (Giarratano Tr. 1077).

Prior to inspecting the barracks area, General Anderson

asked to see the battalion vehicle registration book (id. at

1078). When General Anderson discovered that the vehicle

the sergeant was driving when he had the accident was not

listed in the book, he concluded that the chain of command

was not . ving its job, and he chastised the first sergeant

(id. at 1078-1079). General Anderson did not attempt to

influence the chain of command to take any disciplinary

action against the sergeant or to communicate to anyone

that he should not testify on the sergeant’s behalf if he were

to be court-martialed (id. at 1078-1080).

The second incident involved an inquiry by General An-

derson to the chain of command regarding a Sergeant Fan-

ning, whose name appeared on the military police blotter

(a daily chronological record of police activity) for the

third or fourth time (Giarratano Tr. 446). The sergeant

major of Fanning’s unit answered the phone, and General

Anderson ascertained from him that one of Sergeant Fan-

ning’s prior blotter entries involved adultery, and that his

current problems involved drugs (ibid.). Thereafter, Gen-

eral Anderson expressed his concern that an individual re-

peatedly in trouble should still hold the rank of sergeant—

traditionally a rank associated with leadership and responsi-

bility (ibid.). The sergeant major went on to testify that he

felt his commander was never pressured by General Ander-

16

reviewing the evidence in an impartial manner to

decide whether petitioners should be tried. In fact,

that is precisely the type of inquiry that the courts

performed to determine whether General Anderson

son into taking any action in that case, or in any other

case (id. at 457-458).

The other incidents referred to by petitioners involve con-

tact between General Anderson’s legal advisor and the com-

mander of a military police unit. Petitioners quote liberally

from the MP commander’s affidavit but fail to note that the

legal advisor answered those allegations in an affidavit of

his own (Thomas Gov’t C.A. Exh. 4). The legal advisor

categorically denied that General Anderson ever told him he

was displeased with the testimony of the commander, or that

he ever told the commander General Anderson had said that

he was upset (id. at paras. 9(f) and (g)). Likewise, the le-

gal advisor unequivocally stated the commander was “wrong”

when he said the legal advisor communicated General Ander-

son’s displeasure at the retention and non-classification of a

soldier who was court-martialed (id. at para. 10(b)). The

legal advisor explained that he made several calls to the MP

commander to explain to him that Army regulations re-

quired the soldier to be reclassified because the soldier had

been convicted and could no longer be a military policeman

(id. at para. 10(e)). Finally, the legal advisor stated that

much of the conversation between the advisor and the MP

commander revolved around the MP commander’s dissatis-

faction with the disposition of some court-martials, and did

not involve General Anderson’s views at all (id. at paras.

7(d) and 9(b)).

Notably, the discrepancies between the affidavits of the

legal advisor and the MP commander were extensively liti-

gated in a Third Armored Division case, United States Vv.

Thompson, 19 M.J. 690 (A.C.M.R. 1984), new review and

action ordered, CM 444070 (A.C.M.R. Oct. 9, 1986). In a

limited hearing on the command influence ordered by the

Army Court of Military Review, the military judge heard

the respective contentions of the parties concerning the affi-

davits, reviewed the evidence, and entered special findings.

The military judge found that the affidavit and supporting

17

should have been disqualified under Article 1(9) as

an “accuser.” And, as the extensive litigation in

this case makes clear, there is no reason to conclude

that an evidentiary hearing was inadequate to deter-

mine whether General Anderson was actually prej-

udiced against petitioners.

2. Petitioners also contend (85-825 Pet. 15-24; 85-

826 Pet. 18-26) that they were denied the right to a

fair trial by the actions of General Anderson and his

subordinates. Petitioners do not argue that the relief

awarded in the post-trial proceedings ordered by the

Army Court of Military Review was inadequate to

ensure that they were not prejudiced. Rather, the

gravamen of petitioners’ argument is that the only

way to ensure the elimination of the command influ-

ence prohibited by Article 37 of the UCMJ, 10 U.S.C.

837, is to adopt a rule of per se reversal for every

case in which a commanding officer violates Article

37 in some manner. The Court of Military Appeals

therefore erred, petitioners contend, by applying the

constitutional harmless error standard of Chapman

v. California, 386 U.S. 18 (1967), instead of revers-

ing every conviction without inquiry into the ques-

tion of prejudice. That argument lacks merit, for

several reasons.

memoranda proposed by the MP commander “are summari-

zations, conclusions and perceptions he admitted may be

wrong” (Special Findings (B) (6), at 4). The judge also

found that “[a]t no time” did the legal advisor state to the

MP commander “that MG Anderson was upset with [the

MP commander’s] testimony. The offending statements at-

tributed to [the legal advisor] and implicitly to General

Anderson were the conclusions of [the MP commander ]

based on philosophical concepts and a rehash of [a previous]

case” (Special Findings (B) (4)).

18

First, the Court of Military Appeals’ decision to

apply the Chapman harmless error standard is fully

consistent with congressional intent. Congress did

not intend that all instances of command influence in

violation of Article 37 should result in reversal with-

out regard to whether the accused had been preju-

diced, Like the federal criminal justice systen., the

military system has a harmless error statute, Arti-

cle 59(a), UCMJ, 10 U.S.C. 859(a). That statute

expressly provides that an error not affecting the sub-

stantial rights of a servicemember must be disre-

garded, and it does not treat violations of Article 37

differently from other types of errors. Compare 28

U.S.C. 2111. The legislative history of Article 59(a)

discloses that it was adopted to permit a reviewing

court “to sustain a finding of guilty even though er-

ror had been committed when it can be determined

that the error does not materially prejudice the sub-

stantial rights of the accused” (S. Rep. 486, 81st

Cong., Ist Sess. 25 (1949) ). It is therefore not sur-

prising that the courts have consistently looked to

whether the defendant was prejudiced by command

influence. See, e.g., United States v. McClain, 22

M.J. 124 (C.M.A. 1986) ; United States v. Dubay, 17

C.M.A. 147, 37 C.M.R. 411 (1967).

17 The cases cited by petitioner are not to the contrary.

See Engels v. United States, 678 F.2d 173, 175 (Ct. Cl. 1982)

(burden to show prejudice on an officer evaluation report

resulting from command influence is on the claimant) ;

Calley v. Callaway, 519 F.2d 184, 216 (5th Cir. 1975), cert.

denied, 425 U.S. 911 (1976) (command influence raised but

defense unable to present a “colorable showing” that any

officers involved in the tria! process were affected) ; Homcy

v. Resor, 455 F.2d 1345, 1352-1356 (D.C. Cir. 1971) (com-

mand influence infected sentencing procedure; specific prej-

udice noted and relief granted).

19

Second, the decision below is fully consistent with

this Court’s decisions. As the Court of Military Ap-

peals recognized (Pet. App. 18a), the most likely

effect of General Anderson’s remarks would have

been to discourage servicemembers from offering

favorable testimony in support of an accused at trial

or sentencing. This Court has refused to adopt a rule

of per se reversal in a variety of similar contexts

when a defendant is denied the opportunity to offer

potentially exculpatory evidence.” Moreover, as the

Court explained last Term in Rose v. Clark, No. 84-

1974 (July 2, 1986), slip op. 7-8, “if the defendant

had counsel and was tried by an impartial adjudi-

cator, there is a strong presumption that any other

errors that may have occurred are subject to harm-

less error analysis.” Those conditions were satisfied

in these cases. Petitioners do not claim that General

Anderson’s remarks affected the trial judges or their

defense counsel. In fact, Congress and the military

have taken steps to ensure that trial judges and de-

fense counsel are insulated from command influence.”

18 See, e.g., Crane v. Kentucky, No. 85-5238 (June 9, 1986),

slip op. 9 (denying a defendant the right to testify regarding

the circumstances of his confession can be harmless) ; Dela-

ware V. Van Arsdall, No. 84-1279 (Apr. 7, 1986), slip op.

8-11 (denying a defendant the right to impeach a witness

for bias can be harmless); United States vy. Valenzuela-

Bernal, 458 U.S. 858, 872-874 (1982) (a defendant must

show that a witness deported by the government would have

provided favorable testimony to establish a constitutional

violation) ; Rugendorf v. United States, 376 U.S. 528, 534-

536 (1964) (failure to disclose informant’s identity does not

require reversal in the absence of prejudice).

'? Military judges are insulated from the convening au-

thority or any member of his staff. Under 10 U.S.C. (Supp.

III) 826(c), an individual who is certified and qualified for

20

Third, there was no need for the Court of Military

Appeals to adopt a rule of per se reversal in the

exercise of its supervisory powers to deter a pattern

of intentional lawlessness that could not be remedied

in any other manner. General Anderson’s actions

were neither a deliberate attempt to disrupt the

court-martial process nor part of a systematic effort

to deny defendants in the Third Armored Division

the opportunity to present favorable testimony at

trial. As the Army Court of Military Review con-

cluded in Treakle (18 M.J. at 655), “General An-

derson’s actions were marked by confusing communi-

cation rather than deliberate attempts to pervert the

military justice system.” Moreover, the Army and

the Army Court of Military Review took numerous

steps to reduce the effects of General Anderson’s un-

fortunate remarks on the court-martial process and

to remedy any prejudice that a servicemember may

have suffered. Petitioners have failed to explain why

these steps were insufficient to ensure that they re-

ceived a fair trial.”

duty as a military judge may perform such duties only when

he or she is assigned and directly responsible to the Judge

Advocate General or his designee. Notably, 75% of the 219

trials involving this particular command influence issue were

tried before a military judge alone.

Moreover, since November 1980 all Army defense counsel

have been part of an independent organization, the United

States Army Trial Defense Service. See Dep’t of Army Reg.

27-10, para. 6-2 (Sept. 25, 1986). As a result, all Army de-

fense counsel are professionally insulated from any adverse

consequences of their zealous representation of clients.

*° Petitioners’ contention (86-825 Pet. 18-20; 86-826 Pet.

25 n.33) that command influence is a serious threat to the

military justice system that can be remedied only by a rule

of per se reversal is contradicted by the cases they cite. The

21

Articles 1(9) and 87(a) of the Uniform Code of

Military Justice are unambiguous and have been

given meaningful effect by the military court sys-

tem. The remedies provided by the military courts

on a case-by-case basis are indicative of the mili-

tary’s ability to deal effectively with the problem of

command influence. In fact, contrary to the image

of military justice presented in the petitions (86-825

Pet. 18-19; 86-826 Pet. 21-22), the extensive litiga-

tion of the unlawful command influence issue by the

courts below demonstrates the ability of the military

justice system to police itself and to correct in-

stances of unlawful command influence when they

arise. At every. stage in this litigation, from discov-

ery of the problem by members of the Army’s inde-

pendent Trial Defense Service, to litigation at the

trial level before members of the independent trial

judiciary, to review in the military appellate courts,

petitioners have been ably served by a system de-

signed to assure the fairness of their individual

trials. These courts have concluded that petitioners

were not prejudiced by the isolated and unfortunate

incidents that gave rise to these cases. Further re-

view is not warranted.

decisions by the military courts in those cases indicate that

the case-by-case determination whether a defendant has been

prejudiced is an effective safeguard against unlawful com-

mand influence.

22

CONCLUSION

The petitions for writs of certiorari should be de-

nied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

NORMAN G. COOPER

Col., JAGC, USA

GARY F. ROBERSON

Lt. Col., JAGC, USA

PATRICK A. HEWITT

Capt., JAGC, USA

PATRICK D. O’HARE

Capt., JAGC, USA

SAMUEL J. ROB

Capt., JAGC, USA

ERIK M. STUMPFEL

Capt., JAGC, USA

Appellate Government Counsel

Government Appellate Division

United States Army Legal Services Agency

JANUARY 1987

wv U. S. GOVERNGENT PRINTING OFFICE; 1987 161485 40190

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