Petition for Writ of Certiorari — Tate v. United States

Supreme Ceurt, us.

FILED

951655 .APR 15 199

No. 95-

URES 06 115 corr

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

RICHARD H. TATE, Petitioner,

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

DAVID S. JONAS

Major, U.S. Marine Corps

Counsel of Record

SYED N. AHMAD

Lieutenant, Judge Advocate

General’s Corps

U.S. Naval Reserve

NAVY-MARINE CORPS APPELLATE

DEFENSE DIVISION

Washington Navy Yard

Building 111

Washington, D.C. 20374-1111

202-433-416]

a ~~ oe

<eeELTe

QUESTION PRESENTED

IS UNLAWFUL COMMAND INFLUENCE

INFECTING A COURT-MARTIAL'S POST-TRIAL

PROCESS A STRUCTURAL DEFECT, AS DEFINED

IN ARIZONA v. FULMINANTE, 499 U.S. 279 (1991)?

(1)

a ee i

> nto

iil

TABLE OF CONTENTS

Page

CPUs SI Re ee ee Ee a

OMOEA, PUUPRETLPREEEESO® 6 ook ck ce te ee ee iV

Jog Ee ae ee ar aren Newey.

ESE aE ee Pre nearer eee 2

RUM a eeenenen Ce” A NRES GRES Sc tile 2

REASON FOR GRANTING THE WRIT

UNLAWFUL COMMAND INFLUENCE

INFECTING A COURT-MARTIAL'S

POST-TRIAL PROCESS IS A

STRUCTURAL DEFECT, AS DEFINED

IN ARIZONA v. FULMINANTE, 499 U.S.

COED ae okie Ek oe « acdsee eS b bsake 4

I ats MER ha Bg as SS be Sinauols 6 kM 9

APPENDIX A (Opinion of the U.S. Court of

Appeals for the Armed Forces) ............. la

APPENDIX B (Opinion of the U.S. Navy-Marine

Corps Court of Criminal Appeals) ........... 3a

APPENDIX C (Order of the U.S. Court of

Se Me 5S 2. OF, A. Sock ec ok e. 9a

APPENDIX D (Opinion of the U.S. Navy-Marine

Corps Court of Military Review) ........... lla

iV

APPENDIX E (Affidavit of LT Kramer

RIG: ERG BEE 8 as eet eee eer ees l4a

APPENDIX F (Declaration of Richard H.

TODA, Oe he he ea ee es 18a

TABLE OF AUTHORITIES

Cases:

Arizona v. Fulminante, 499 U.S. 279 (1991) .... 4,5

Brecht v. Abrahamson, 113 S. Ct. 1710 (1993) ..... 7

Chapman v. California, 386 U.S. 18 (1967) ....... 5

Gideon v. Wainwright, 372 U.S. 335 (1963) ....... 6

Holloway v. Arkansas, 435 U.S. 475 (1978) ....... 6

McKaskle v. Wiggins, 465 U.S. 168 (1984) ....... 6

Sullivan v. Louisiana, 113 S. Ct. 2078 (1993) .... 6,7

Suey VGA, £73 US FPO Cas ed ss 6 eee UW ee ss 6

United States v. Bono, 26 M.J. 240 (C.M.A. 1988) .. 5

United States v. Tate, No. 91 02074

(IR U-s DUA Ais ART ix ae d's ee 8 es we + ap

United States v. Tate, 37 M.J. 218

REE oc ls Papen es re, samy xy 2, 4

United States v. Tate, No. 91 02074

(N.M. Ct. Crim. App. Apr. 11, 1995) ...... 1 3 4

United States v. Tate, No. 93-0018/NA

(CA AS SR TO, 29peb rs sb eee a 1, 4

United States v. Thomas, 22 M.J. 388

(C.M.A. 1986), cert. denied, 479 U.S. 1085 (1987). 5

United States v. Weasler, 43 M.J. 15 (1995) ..... Ae

Vasquez v. Hillery, 474 U.S. 254 (1986) ....... 6, 7

Waller v. Georgia, 467 U.S. 39 (1984) .......... 6

Webb v. Texas, 409 U.S. 95 (1972) .........000. 8

Statutes and Rules:

PB USC. € 125HB) 00 ccc cece verccvcccsces 2

Article 22. U.C.M.J., 10 U.S.C. § 822 ......-.-.-. 3

Article 60, U.C.M.J., 10 U.S.C. § 860 ...... ce ie

Article 125, U.C.M.J., 10 U.S.C. § 925........---- 2

Article 134, U.C.M.J., 10 U.S.C. § 934......-.-. 2

Rule for Court-Martial 104, Manual for Courts-Martial,

United States (1995 edition) ......--+++++++:: 4

Rule for Court-Martial 601, Manual for Courts-Martial,

United States (1995 edition) .....-.---+++++5: 3

Miscellaneous:

95 Cong. Rec. 5718 OE os sas 6 Wale Mis ae eo 7

Affidavit of LT Kramer (Dec. 21, 1992) .....----. 3

Declaration of Richard H. Tate (Aug. 6, 1993) ..... 3

SS

eh rete ~ . a ee Te

PARAL NE Re AEN Ty RNA EM Bim»

ote | x |

rn > £

= Pe Sie

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-

RICHARD H. TATE, Petitioner,

vx

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ARMED FORCES

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Armed Forces,' United States v. Tate, No. 93-0018/NA

(C.A.A.F. Jan. 16, 1996), is reprinted as Appendix A.

The unpublished opinion of the United States Navy-

Marine Corps Court of Criminal Appeals,’ United States v.

Tate, No. 91 02074 (N.M. Ct. Crim. App. Apr. 11, 1995), is

| The United States Court of Appeals for the Armed Forces was

formerly known as the United States Court of Military Appeals.

Petitioner will refer to the court by its name at the time of its opinion and

order.

The United States Navy-Marine Corps Court of Criminal Appeals

was formerly known as the United States Navy-Marine Corps Court of

Military Review. Petitioner will refer to the court by its name at the time

of its opinion.

(1)

reprinted as Appendix B.

The order of the United States Court of Military

Appeals, United States v. Tate, 37 M.J. 218 (C.M.A. 1993),

is reprinted as Appendix C.

The unpublished opinion of the United States Navy-

Marine Corps Court of Military Review, United States v.

Tate, No. 91 02074 (N.M.C.M.R. July 28, 1992), is reprinted

as Appendix D.

JURISDICTION

The United States Court of Appeals for the Armed

Forces affirmed the decision of the United States Navy-

Marine Corps Court of Criminal Appeals on January 16,

1996. App. at la. 28 U.S.C. § 1259(3) provides jurisdiction

in this case.

STATEMENT OF THE CASE

Petitioner pleaded guilty to two specifications of

committing sodomy in violation of Article 125, Uniform

Code of Military Justice [hereinafter U.C.M.J.], 10 U.S.C. §

925; one specification of falsely swearing to a statement, in

violation of Article 134, U.C.M.J., 10 U.S.C. § 934; and one

specification of taking indecent liberties with a child under

sixteen years of age, also in violation of Article 134,

U.C.M.J., 10 U.S.C. § 934. Petitioner was sentenced to

confinement for twelve months, forfeiture of five hundred

dollars pay per month for twelve months, reduction to the

third lowest enlisted paygrade (E-3), and a bad-conduct

discharge.

ee

3

After trial, an accused may submit matters to the

convening authority’ for consideration with respect to the

findings and the sentence. Article 60(b)(1), U.C.M.J., 10

U.S.C. § 860(b)(1). The convening authority must consider

these matters before deciding whether to approve or

disapprove the findings and sentence of the court-martial.

Article 60(c)(2), U.C.M.J., 10 U.S.C. § 860(c)(2).

Petitioner attempted to obtain favorable comments

from his military superior, Lieutenant [LT] Kramer, in order

to have the convening authority consider them prior to taking

his action. However, LT Kramer declined to provide

Petitioner with a recommendation because he had been told,

through his chain of command, specifically the Assistant

Officer-in-Charge (the second-highest ranking member in the

unit), that any further support for Petitioner would harm LT

Kramer's chances for promotion and selection to an

architectural registration program. Affidavit of LT Kramer

(Dec. 21, 1992), App. at 14a. As a result of the command's

unlawful influence on LT Kramer, Petitioner was discouraged

from obtaining a clemency recommendation from LT Kramer

or anyone else in his command. Declaration of Richard H.

Tate (Aug. 6, 1993), App. at 19a. The convening authority

was unaware of Petitioner's inability to obtain clemency

recommendations. App. at 6a. The convening authority

reduced Petitioner's confinement to six months based upon

other unrelated clemency matters.

Upon review, the Navy-Marine Corps Court of

Military Review affirmed the findings and sentence below.

> The convening authority is the officer who creates, and sends

specific charges to, a court-martial. Additionally, the convening authority

has the power to approve or disapprove, for any or no reason, the findings

and sentence of a court-martial and to grant clemency. Article 22,

U.C.M.J., 10 U.S.C. § 822; Rule for Courts-Martial 601, Manual for

Courts-Martial, United States (1995 edition). This immensely powerful

position, with its unfettered degree of discretion, has no civilian

counterpart.

4

App. at lla. Before the Court of Military Appeals, Petitioner

alleged that unlawful command influence deprived him of his

post-trial rights when he was deprived of favorable comments

from his military superiors in support of his clemency

request. The Court of Military Appeals remanded the case to

the Navy-Marine Corps Court of Military Review for

consideration of the issue of unlawful command influence.

App. at 9a. The Navy-Marine Corps Court of Criminal

Appeals held that post-trial unlawful command influence was

exerted in Appellant's case, but the resulting error was

harmless. App. at 3a. The Court of Appeals for the Armed

Forces summarily affirmed the lower court, holding that the

lower court applied the correct standard when it concluded

that the unlawful command influence was harmless beyond

a reasonable doubt. App. at la. Judge Sullivan, dissenting,

stated that the issue should not have been summarily

affirmed, and that the court should have addressed the issue

after a full appellate hearing, due to the importance of the

issue of unlawful command influence, and the danger

inherent therein, both to Petitioner and to the entire military

justice system. App. at 2a.

REASON FOR GRANTING THE WRIT

UNLAWFUL COMMAND INFLUENCE INFECTING A

COURT-MARTIAL'S POST-TRIAL PROCESS IS A

STRUCTURAL DEFECT, AS DEFINED IN ARIZONA vy.

FULMINANTE, 499 U.S. 279 (1991).

Unlawful command influence is defined as "an

attempt to coerce, or, by any unauthorized means, influence

the action of a court-martial . . . or the action of any

convening, approving, or reviewing authority with respect to

such authority's judicial acts." Rule for Courts-Martial

104(a)(2), Manual for Courts-Martial, United States (1995

edition). Unlawful command influence is the "mortal enemy

5

of military justice." United States v. Thomas, 22 M.J. 388,

393 (C.M.A. 1986), cert. denied, 479 U.S. 1085 (1987).

The jiower court found that unlawful command

influence infected the post-trial stages of Petitioner's court-

martial, specifically, the convening authority's action. The

convening authority’s action is a critical stage in the military

justice process as it finalizes military prosecutions. The

convening authority has sole discretion to approve the

findings and sentence of a court-martial in whole or part, or

to disapprove them in toto for any reason. Article 60(c),

U.C.M.J., 10 U.S.C. § 860(c). In taking action, the

convening authority is required to consider any matters

submitted by an accused. Article 60(c)(2), U.C.M.J., 10

U.S.C. § 860(c)(2). Such broad powers explain why the

convening authority's action is such an important stage in the

court-martial process and is the accused’s "best hope for

sentence relief." United States v. Bono, 26 M.J. 240, 243 n.3

(C.M.A. 1988).

Unlawful command influence deprives

"servicemembers of their constitutional rights." Thomas, 22

M.J. at 393. In assessing this constitutional error, the lower

courts applied the "harmless beyond a reasonable doubt"

analysis. See Thomas, 22 M.J. at 393-94 (for unlawful

command influence cases, Court of Military Appeals adopted

this analysis based on Chapman v. California, 386 U.S. 18

(1967)). Petitioner contends that the lower court erred in

using this analysis, because unlawful command influence is

a structural defect in the constitution of the trial mechanism.

In Arizona v. Fulminante, 499 U.S. 279, 309 (1991),

this Court divided constitutional errors into "trial errors" and

"structural defects." Trial errors are subject to the Chapman

constitutional harmless-error analysis; structural defects are

not examined for prejudice, and require reversal in all cases.

Structural defects are those defects "in the constitution of the

trial mechanism." Jd. at 309. As an analogy, specific facets

of a trial may be seen as the building blocks of a house. The

6

foundation would consist of the following: the right to an

impartial judge; the right to conflict-free counsel; the right to

self-representation; the right to a public trial; the right to

have an accurate reasonable doubt instruction; and the right

to have a grand jury free of intentional exclusions of racial

groups. If there is an infirmity in any part of this foundation,

then the house must be rebuilt, regardless of the fact that the

house still stands. The Constitution requires no less. Tumey :

v. Ohio, 273 U.S. 510 (1927) (a trial must have an impartial

:

:

judge, regardless of the guilt of an accused); Gideon v.

Wainwright, 372 U.S. 335 (1963) (an indigent accused must

be given an attorney); Holloway v. Arkansas, 435 U.S. 475

(1978) (attorney must not have conflict of interest); McKaskle

v. Wiggins, 465 U.S. 168 (1984) (violation of right to self-

representation requires reversal, even though there is less

prejudice when the right is violated); Waller v. Georgia, 467

U.S. 39 (1984) (accused guaranteed right to public trial :

despite lack of prejudice); Sullivan v. Louisiana, 113 S. Ct.

2078 (1993) (proper reasonable doubt instruction required,

despite guilt); Vasquez v. Hillery, 474 U.S. 254 (1986)

(purposeful exclusion of a racial group from a grand jury

requires reversal, regardless of prejudice). These parts of the

foundation must exist, regardless of the charges, evidence, or

defenses at trial.

In a military criminal prosecution (including the

convening authority’s action), there is another part of the

foundation: the right to be free from unlawful command

influence. Three factors support this contention.

First, the military is prone to unlawful command

influence by the very nature of the command system, the

rank structure, and the awesome and unique power associated

with both. As a result, it is impossible to determine with any

degree of reliability in what manner unlawful command

influence has affected a prosecution. Specifically, Petitioner,

once he learned of the unlawful command influence, was

prevented from asking for recommendations from others who

may have aided his defense. The effects of the unlawful

command influence in this case extend far beyond the

absence of LT Kramer’s recommendations; it resulted in an

incomplete record and prevented the convening authority

from considering highly favorable, credible, and relevant

evidence. This is, therefore, a structural defect. See

Sullivan, 113 S. Ct. at 2084 (REHNQUIST, C.J., concurring)

(traits of structural errors include affecting composition of

record and preventing jury from considering certain

evidence).

Second, unlawful command influence unfairly

prevented Petitioner from submitting clemency matters to the

convening authority -- his best hope for relief. The Uniform

Code of Military Justice provides for this right, and any

infringement is fundamentally unfair. Article 60, U.C.M.J.,

10 U.S.C. § 860; Brecht v. Abrahamson, 113 S. Ct. 1710,

1723 (1993) (STEVENS, J., concurring) (""[S}tructural’

defects [are] those that make a trial fundamentally unfair

even if they do not affect the outcome of the proceeding.").

Finally, the right to be free from unlawful command

influence is at the very heart of the military justice system.

See generally 95 Cong. Rec. 5718 (1949) (floor debate

concerning U.C.M.J.; statement of Rep. Elston: Command

influence involves one of the most fundamental issues in

military justice). "Unlawful command influence undermines

the integrity of the military justice system... ." United

States v. Weasler, 43 M.J. 15, 16 (1995). Thus, like an

intentional exclusion of a racial group from a grand jury,

command influence in the military "strikes at the fundamental

values of our judicial system and our society as a whole."

Vasquez, 474 U.S. at 262 (quoting Rose v. Mitchell, 443

U.S. 545, 556 (1979)). Like an intentional exclusion,

unlawful command influence is "possible only under color of

state authority, and wholly within the power of the State to

prevent." Vasquez, 474 U.S. at 262. As a result, unlawful

command influence is a structural defect.

8

In Webb v. Texas, 409 U.S. 95 (1972), this Court held

that the judge's threatening remarks to a defense witness,

which "drove the witness off the stand," deprived petitioner

of due process, and this Court reversed. The dissenting

opinion argued that this error should have been tested for

prejudice. However, the defect in Webb was so egregious

that this Court did not test for prejudice as it deprived

petitioner of due process. Similarly, Petitioner has been

deprived of his right to due process by the patently illegal

conduct of members of his command which prevented the

full exercise of his constitutional rights. Petitioner's witness

was driven away from giving evidence, not at trial, but at an

equally important stage of the court-martial process -- the

review by the Convening Authority of clemency matters

submitted prior to his taking action on the findings and

sentence of the court-martial. This threat was not judicial in

nature, but by a superior commissioned officer in LT

Kramer's chain-of-command, with a clear threat of retribution

for noncompliance. As in Webb, this Court should find that

the use of the constitutional harmless-error standard is

inappropriate, and as a result, the lower court erred in using

this standard.

9

CONCLUSION

Petitioner's case presents a fundamental question of

Constitutional law, and calls into question the fairness of the

process by which Petitioner’s findings and sentence are

approved by the convening authority. "Unlawful command

influence has been called a cancer of the military justice

system .. . [l]ike cancer in a human body, this cancer in our

system of justice will not go away by shutting our eyes to it."

Weasler, 43 M.J. at 21-22 (Wiss, J., concurring in the result).

This Court should grant certiorari to resolve this important

question of constitutional law.

Respectfully submitted,

DAVID S. JONAS

Major, U.S. Marine Corps

Counsel of Record

SYED N. AHMAD

Lieutenant, Judge Advocate

General’s Corps

U.S. Naval Reserve

NAVY-MARINE CORPS APPELLATE

DEFENSE DiVISION

Washington Navy Yard

Building 111

Washington, D.C. 20374-1111

APPENDICES

APPENDIX A

U.S. COURT OF APPEALS FOR THE ARMED

FORCES

No. 93-0018/NA

Crim. App. No. 91-2074

United States, Appellee

Richard H. TATE, Chief Builder

U.S. Navy, Appellant

On consideration of the petition for grant of review of

the decision of the United States Navy-Marine Corps Court

of Criminal Appeals dated April 11, 1995, and having

carefully reviewed the entire record, we are satisfied that

the court below applied the correct standard when it

concluded that the unlawful command influence in this

case was harmless beyond a reasonable doubt. We are

further satisfied that the action taken in the decision below

is sufficient as a matter of law. Accordingly, it is, by the

Court, this 16th day of January, 1996,

ORDERED:

That said petition is hereby granted on the issue raised

by appellate defense counsel in the Supplement filed on

June 6, 1995: and

(la)

2a

That the decision of the United States Navy-Marine

Corps Court of Criminal Appeals dated April 11, 1995, is

affirmed.

For the Court,

/s/ John A. Cutts, IT]

Deputy Clerk of the Court

SULLIVAN, Judge (dissenting):

I dissent. Although I might reach the same result

as the majority in affirming this case, I would do so only

after the command-influence issue advanced in this appeal

received a full appellate hearing before this Court. In this

case, the court below held as a matter of law that there was

"unlawful command influence" but that this command

influence was harmless. This is the type of case that our

Court should closely examine in the light of a full

appellate review in order to show the American public that

the military justice system gives fair results without

unlawful command influence.

cc: The Judge Advocate General of the Navy

Appellate Defense Counsel (SMITH)

Appellate Government Counsel (MARGOLIN)

3a

APPENDIX B

IN THE UNITED STATES NAVY-MARINE CORPS

COURT OF CRIMINAL APPEALS

ALBERT A. REED T.D. KEATING

T.B. HAMILTON

UNITED STATES

Richard H. Tate, 540 64 0219

Chief Builder (E-7), U.S. Navy

NMCM 91 02074 Decided 11 April 1995

Sentence adjudged 4 April 1991. Military Judge: G.L.

Wells. Review pursuant to Article 66(c), UCMJ, of

General Court-Martial convened by Commander, Light

Attack Wing, U.S. Pacific Fleet, Naval Air Station,

Lemoore, CA.

LT MATTHEW KRONISCH, JAGC, USNR, Appellate

Defense Counsel

LT NANETTE M. DeRENZI, JAGC, USN, Appellate

Defense Counsel

LT MARGIE SAMPSON, JAGC, USNR, Appellate Defense

Counsel

LT T.S. SUSANIN, JAGC, USNR, Appellate Government

Counsel

CDR STEPHEN A. STALLINGS, JAGC, USN, Appellate

Government Counsel

4a

AS AN UNPUBLISHED DECISION, THIS OPINION

DOES NOT SERVE AS PRECEDENT.

PER CURIAM:

This case was first decided by this Court on 28 July

1992. United States v. Tate, No. 91 2074 (N.M.C.M.R. 28

July 1992). While the case was awaiting further review by

the U.S. Court of Military Appeals (now the U.S. Court of

Appeals for the Armed Forces), the appellant filed a series

of affidavits with that Court raising the issue of unlawful

command influence in the post-trial stage of the appellant’s

case. Based upon those affidavits, the Court of Military

Appeals set aside this Court’s opinion and remanded the

case for further consideration. United States v. Tate, 37

M.J. 218 (C.M.A. 1993) (Order).

We have once again examined the record of trial, the

original assignments of error,’ the additional assignment

of error filed as a result of the remand,“ and the

1. THE MILITARY JUDGE’S POST-TRIAL COMMENTS

REGARDING APPELLANT'S PUNITIVE DISCHARGE IMPEACHED

THE SENTENCE.

ll. THE CONVENING AUTHORITY’S ACTION MUST BE

SET ASIDE BECAUSE THE STAFF JUDGE ADVOCATE FAILED TO

COMMENT ON THE SIGNIFICANCE OF THE POST-TRIAL

STATEMENTS OF THE MILITARY JUDGE.

* APPELLANT WAS PREJUDICED BECAUSE THE

UNLAWFUL COMMAND INFLUENCE BY LIEUTENANT

COMMANDER [H], THE ASSISTANT OFFICER IN CHARGE OF

APPELLANT’S COMMAND, INTERFERED WITH APPELLANT’S

RIGHT TO SUBMIT CLEMENCY MATTERS UNDER RULE FOR

COURTS-MARTIAL 1105.

- anna

$a

Government’s replies thereto, and we have concluded that

the findings and sentence are correct in law and fact and

that no error materially prejudicial to the substantial rights

of the appellant was committed.

Pursuant to his pleas, the appellant was found guilty of

committing fellatio and cunnilingus with his 10-year-old

daughter, rubbing her vagina on separate occasions, and

lying to the Naval Investigative Service when confronted

about these offenses, in violation of Articles 125 and 134,

Uniform Code of Military Justice, 10 U.S.C. §§ 925, 934.

The military judge, sitting as a general court-martial,

sentenced the appellant to forfeitures of $500.00 pay per

month for 12 months, confinement for 12 months,

reduction to pay grade E-3, and a bad-conduct discharge.

[he convening authority [CA] approved the sentence as

adjudged and, though not required to do so, suspended

confinement in excess of 6 months for a period of 12

months.

We will consider the appellant’s assignments of error

seriatim. The first two deal with an allegation that the

military judge impeached the sentence he adjudged. The

following facts are pertinent in an analysis of this issue.

In a clemency petition, trial defense counsel alleged that

the military judge, after the trial ended, said that he was

"shocked" that the pretrial agreement did not provide for a

suspended punitive discharge, that the command suspended

both lengthy confinement and punitive discharges in nearly

half the cases of this nature that he handled, and that the

Navy would do itself and the appellant a disservice by

allowing him to be discharged.

The staff judge advocate failed to address these alleged

6a

statements in his advice to the convening authority. In an

affidavit filed by the appellate government counsel and

accepted by us in an earlier order, the military judge avers

that while the conversation alleged by the trial defense

counsel did occur, he has no specific recollection of it.

[he military judge also claims that the statements

attributed to him are repeated out of context; that in many

cases he has judged where the accused has lengthy and

unblemished service and is admitted to the Family

\dvocacy Program [FAP], the command does suspend the

discharge and lengthy confinement; that his surprise was

that the appellant was not in FAP; and that he thought at

the time that the sentence he awarded was lenient, and he

continues to think so.

We find that the military judge awarded a sentence he

believed to be appropriate, if lenient. Assignments of

Error I and II are without merit. United States v. Scott, 21

M.J. 345 (C.M.A. 1986); cf United States v. Hill, 27 M.J.

293 (C.M.A. 1988).

In his additional assignment of error filed as a result of

the remand, the appellant alleges that post-trial unlawful

command influence was exerted in his case. We agree but

find that the resulting error was harmless. The facts

follow.

[he appellant was frustrated in presenting certain

clemency matters to the CA before the CA acted, when

LCDR H, then the Assistant Officer-in-Charge of

appellant’s command, advised LT K, the appellant’s

immediate supervisor, to consider the extent of his support

for the appellant. LT K, by way of a stipulation, was a

willing and favorable witness for the appellant at trial.

However, after his discussion with LCDR H, LT K refused

7a

to provide any further clemency matter on the appellant’s

behalf, post-trial, because he was awaiting selection into a

certain program and did not want to possibly jeopardize

that selection.

LT K and LCDR H both viewed their discussion about

LT K’s participation in post-trial clemency as a personal,

rather than a professional, matter. We, however, fail to see

any distinction between a naval officer’s personal and

professional interests under these facts. The direct and

predictable consequence of LCDR H’s discussion with LT

K was an interference with the appellant’s opportunity to

submit matters to the CA under Rule for Courts-Martial

1105(b)(4). The appellant has thus met his burden -- he

has presented some evidence from which to draw a

reasonable conclusion in favor of the allegation of

command influencet United States v. Allen, 31 M.J. 572

(N.M.C.M.R. 1990), aff'd, 33 M.J. 209 (C.M.A. 1991).

The Government has failed to show by clear and

convincing evidence that command influence did not occur.

Thus we conclude that unlawful command influence

occurred when LT K failed to provide post-trial clemency

matters as a result of his conversation with LCDR H.

What remains to be determined is whether or not this

Court is satisfied, beyond a reasonable doubt, that the

findings and sentence are unaffected by the command

influence. United States v. Jones, 30 MJ. 849

(N.M.C.M.R. 1990).

We are so satisfied. The appellant’s misconduct,

referenced above, was egregious. The victim’s

psychological health was severely impaired. The offenses

of which the appellant was convicted authorized a

maximum sentence of 37 years confinement, reduction to

pay grade E-1, total forfeiture of all pay and allowances,

8a

and a dishonorable discharge.

The military judge awarded what he considered to be a

lenient sentence of 12 months confinement, a bad-conduct

discharge, and other ancillary punishments. The record of

trial included LT K’s and eight others’ favorable,

testimony on the appellant’s character and service. The

CA, after considering the staff judge advocate’s

recommendation, two written clemency petitions and an

oral clemency presentation by the trial defense counsel,

gratuitously suspended half the confinement adjudged.

We find the CA to have been fully aware of the

appellant’s character and his value to the naval service as

well as his crimes and their effect on the victim. We find

beyond any reasonable doubt that a clemency letter from

LT K would not have affected the findings and sentence

approved by the convening authority. United States v.

Stumbaugh [sic], 36 M.J. 1180 (N.M.C.M.R. 1993).

Accordingly, the findings and sentence, as approved on

review below, are affirmed.

9a

APPENDIX C

U.S. COURT OF MILITARY APPEALS

No. 93-0018/NA

CMR. No. 91-2074

United States, Appellee

Richard H. TATE, Chief Builder

U.S. Navy, Appellant

On consideration of appellant’s motion to allow defense

appellate Exhibits A and B, appellee’s motion to remand

case to the Navy-Marine Corps Court of Military Review

and motion for enlargement of time, it is, by the Court.

this 29th day of January, 1993,

ORDERED:

That the motion to allow appellate Exhibits A and B is

hereby granted;

That the motion for enlargement of time is denied as

moot;

That the motion to remand is hereby granted:

That the decision of the United States Navy-Marine

Corps Court of Military Review is set aside: and

That the record of trial is hereby returned to the Judge

Advocate General of the Navy for remand to the Court of

10a

Military Review for further review.

For the Court,

/s/ John A. Cutts, III

Deputy Clerk of the Court

cc: The Judge Advocate General of the Navy

Appellate Defense Counsel (HYATT)

Appellate Government Counsel

:

$

‘

3

3

:

:

;

4

7

3

4

lla

APPENDIX D

IN THE UNITED STATES NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

JAMES E. ORR’ R.M. MOLLISON

T.B. HAMILTON

UNITED STATES

Richard H. Tate, 540 64 0219

Chief Builder (E-7), U.S. Navy

NMCM 91 02074 Decided 28 July 1992

Sentence adjudged 4 April 1991. Military Judge: George

L. Wells. Review pursuant to Article 66(c), UCMJ, of

General Court-Martial convened by Commander, Light

Attack Wing, U.S. Pacific Fleet, Naval Air Station,

Lemoore, CA.

LT NANETTE M. DeRENZI, JAGC, USN, Appellate

Defense Counsel

LT MATTHEW KRONISCH, JAGC, USNR, Appellate

Defense Counsel

LT T.S. SUSANIN, JAGC, USNR, Appellate Government

Counsel

PER CURIAM:

Pursuant to his pleas, appellant was found guilty of

committing fellatio and cunnilingus with his 10-year-old

daughter, rubbing her vagina on separate occasions, and

12a

lying to the Naval Investigative Service when confronted,

in violation of Articles 125 and 134, Uniform Code of

Military Justice. The military judge, sitting as a general

court-martial, sentenced appellant to forfeit $500.00 pay

per month for 12 months, to be confined for 12 months, to

be reduced to E-3 and to receive a bad-conduct discharge.

In a clemency petition, trial defense counsel alleged that

the military judge, after the trial ended, said that he was

"shocked" that the pretrial agreement didn’t provide for

suspending the punitive discharge, that the command

suspended both lengthy confinement and punitive discharge

in nearly half the cases of this nature that he handled, and

that the Navy would do itself and appellant a disservice by

allowing him to be discharged. The staff judge advocate

failed to address these alleged statements in his advice to

the convening authority. In an affidavit filed by appellate

government counsel and accepted by us in an earlier order,

the military judge avers that while the conversation alleged

by trial defense counsel did occur, he has no specific

recollection of it. The military judge also claims that the

statements attributed to him are repeated out of context;

that in many cases he has handled where the accused has

lengthy and unblemished service and is admitted to the

Family Advocacy Program (FAP), the command does

suspend the discharge and lengthy confinement; that his

surprise was that appellant was not in the FAP; and that he

thought at the time that the sentence he awarded was

lenient, and he continues to think so. The convening

authority approved the sentence as adjudged and though

not required to do so, suspended confinement in excess of

6 months for a period of 12 months.

We find that the military judge awarded a sentence he

believed to be appropriate, if lenient. The assignments of

error are without merit. United States v. Scott, 21 M.J.

l3a

345 (C.M.A. 1986); cf United States v. Hill, 27 M.J. 293

(C.M.A. 1988). Accordingly, the findings of guilty and the

sentence, as approved on review below, are affirmed.

l4a

APPENDIX E

AFFIDAVIT

I, Richard Kramer, USN, the affiant whose name is

signed below, having first been duly sworn and being of

sound mind and memory, do voluntarily, without coercion,

and of my own free will, do depose and say as follows:

I am a Lieutenant in the Navy Civil Engineer Corps and

that I was Builder Chief Richard Tate’s direct supervisor

while he served at Naval Air Station, Fallon, Nevada.

It is true that I agreed to testify for Chief Tate at his

court-martial but did not due to some formality. However

a stipulation of expected testimony was prepared which

nearly accurately reflects what my testimony would have

been.

After BUC Tate’s sentencing my direct supervisor,

LCDR William Hoppe advised me to consider the extent

of my support for BUC Tate. I did not interpret his

statement as a directive from my chain of command,

however I did think that somehow the issue could have an

impact on my career.

Soon after this conversation, Diane Tate contacted me

and asked me to write a letter of clemency in support of

BUC Tate. I told her I could not write the letter at the

time because I was concerned about getting into a selective

program to receive architectural registration. However, |

did not tell her I would never write a letter in support of

BUC Tate. Diane Tate did not ask me to provide the letter

again.

hE AE CONE Lik ei Ss: nt atte REE eID Me

see VE

bate

i Be et LE Rap oT AE ADOT har

§

lSa

In early November, 1992 I was contacted by BUC

Tate’s attorney Mr. Dan Hyatt. In my conversation with

Mr. Hyatt I explained that I was concerned about the

ramifications of my support for BUC Tate and that they

were partially based on discussions I had with LCDR

Hoppe. I refused to give LCDR Hoppe’s name to Mr.

Hyatt because I wanted to talk to LCDR Hoppe first. I did

agree to allow Mr. Hyatt to prepare an affidavit for my

review and signature.

I did not sign the affidavit prepared by Mr. Hyatt

because the wording in it implied that I was being

threatened by my command if I supported BUC Tate. This

was not true. I knew I could write the letter of clemency

without repercussions from my chain of command. My

concern was that it could somehow have a negative impact

on my career. I contacted LCDR Hoppe to clarify the

intent of the discussion he had with me. LCDR Hoppe

affirmed that the advice he gave me was personal advice.

Specifically, that I did not owe BUC Tate any further

support and that I should consider how supporting him

would affect me personally, but not professionally. He

apologized for any misinterpretations I may have made and

further stated that he did not think my career was in any

way at risk. I responded to Mr. Hyatt with the attached

letter dated November 20, 1992.

LCDR Stallings of the Appellate Government Division

in Washington provided me copies of affidavits signed by

Diane Tate and Mr. Hyatt. I have read these affidavits and

find that Mrs. Tate’s statements regarding the situation

with me are true with the exception that I did not state I

would not write a letter of clemency even if I did get

accepted for the Architectural Development Program. If I

would have been asked again, I would have contacted

l6a

LCDR Hoppe and would have in all likelihood provided

the letter of clemency. The letter of clemency would not,

however, have added anything more than that stated in my

stipulation of expected testimony.

In response to Mr. Hyatt’s affidavit regarding our

telephone conversation, I find it to be inaccurate. First of

all, I did not tell him that I was directed nor warned by my

superiors to not help BUC Tate. I merely told him that |

still had some concerns for my career. Second, I did not

tell him I would have written a letter for BUC Tate if |

had not been warned by my superiors. Third, I told him

[ would have to look at the affidavit before I signed it, but

[ did not give the reason he stated. The reason would have

been based on its accuracy. Fourth, I did respond to Mr.

Hyatt’s affidavit request with the attached letter.

In summary, it is true that I did not write a letter of

clemency due to concerns for my career. Ht is true that this

decision was partially based on a statement made by LCDR

Hoppe, however, I did not interpret the statement as a

warming or an order. Finally, it is true that |

misinterpreted his statement to believe that supporting

BUC Tate could have a negative impact on my career.

Dated: 21 December 1992.

Signed: s/ [Richard A. Kramer]

WITH THE UNITED STATES ARMED FORCES

AT NAVAL LEGAL SERVICE OFFICE, SAN

DIEGO, CALIFORNIA

I, William H. Meyer, the undersigned officer, do hereby

certify that on this twenty-first day of December, 1992,

ee EE

DI RE er Setar PR OF Mt ae, ee

EE RL SE GS Sd OGY MPs

a Oa

Se

17a

before me personally appeared Richard A. Kramer, who is

known to me to be a U.S. Armed Forces member on active

duty, and to be the identical person who is described in.

whose name is subscribed to, and who signed and executed

the forgoing instrument, having first made known to him

the contents thereof, he personally acknowledged to me

that he signed the same on the date it bears, as his true.

free and voluntary act and deed, for uses, purposed, and

considerations therein set forth. And I do further certify

that I am at the date of this certificate a Judge Advocate

under authority granted to me by Article 36, Uniform Code

of Military Justice, Title 10, U.S. Code Section 936, the

Manual of the Judge Advocate General, Sections 2502 and

2503, and California Civil Code 1183.5.

S

WILLIAM H. MEYER

Lieutenant

Judge Advocate General’s Corps

United States Naval Reserve

— sw ee Se eS

18a

APPENDIX F

DECLARATION OF BUILDER CHIEF PETTY

OFFICER RICHARD H. TATE

I, Richard H. Tate declare that:

|. During my incarceration at the Naval Consolidated Brig

in San Diego, California, I called Lieutenant Krammer to

request help in preparing my clemency package. I wanted

Lieutenant Krammer to write a clemency recommendation

for me. I also wanted to know if Lieutenant Krammer

provided any input for my final enlisted performance

evaluation.

2. Lieutenant Krammer said that he did not provide any

input for my evaluation, and that he could not provide me

with a clemency recommendation because he had been told

by the chain of command that any further support for me

would harm his chances for promotion and for selection to

a special program. Lieutenant Krammer stated that if hi

was not selected for the program, he would gladly write a

letter on my behalf.

3. Although Lieutenant Krammer asked me not to tell

anyone about our conversation, I told my wife who then

called and talked to Lieutenant Krammer. Lieutenant

Krammer told her basically the same things that he told

me. My wife provided my civilian defense attorney, Dan

Hyatt, with a sworn statement detailing her conversation

with Lieutenant Krammer.

4. After our initial conversation, I never again asked

Lieutenant Krammer to provide me with a clemency

SS eee

lll A a —— were ee —_—- -

et te RY at Saline

19a

recommendation. I did not want to put his career in

jeopardy, and I needed his recommendation by a certain

deadline in order to submit it to the new convening

authority.

5. My conversation with Lieutenant Krammer discouraged

me from asking anyone else in the command for letters of

clemency on my behalf.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of

perjury that the foregoing information is true and correct.

Executed on this 6 day of August 1993.

S

RICHARD H. TATE

BUC. USN

Appellant

tc tg CL ttt LLL ALLEL LLL DDL ALLL LAA