Petition for Writ of Certiorari — Reynolds v. United States

am Supreme Court, U.S.

* FILED

wa 941032 DEC 9 \9m

NO. OFFICE OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1995

JOHN H. REYNOLDS, 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 WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

MARGE A. OVERLY

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

December 1994

QUESTION PRESENTED

Whether the petitioner was denied a fair trial by the in-

fusion of unlawful command influence into the court-

martial through the convening authority’s comments on

his dissatisfaction with prior court-martial results, made

during a briefing attended by four of the panel members

just prior to assembly; and the use of superiority of rank

by the court-martial president, during sentence delibera-

tions.

Opinions Be

Jurisdiction

LABLE OF CONTENTS

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ceecveée COC ec OC4 Ba CO O86.) £8 E42 OSS SC. 6

Statutory Provisions Involved ....................5.

Statement of the Case

Reasons for Granting the Writ .....................

Conclusion

Appendix A

Appendix B

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25a

TABLE OF AUTHORITIES

SUPREME COURT CASES: Page

Chapman v. California, 386 U.S. 18 (1967) ...... 6, 9a

MILITARY CASES:

United States v. Accordino, 20 M.J. 102 (C.M.A.

eae ee eee kee teas oe o A v4 y

United States v. Allen, 33 M.J. 209, 212 (C.M.A.

dike chi debuse egal did evn @bewndde dss es 9a

United States v. Brice, 19M.J. 170 (C.M.A. 1985). ®

United States v. Davenport, 17 M.J. 242 (C.M.A.

ee Bae ei eae oa grees heed wens aoe 8 5

United States v. Glenn, 25 M.J. 278 (C.M.A.

ee ee Os ree ead ¥en ¥« 5

United States v. Hodges, 22 M.J. 260 (C.M.A.

ee a a ee anes 10

United States v. Johnston, 39 M.J. 242 (C.M.A.

I rg i ew ceweeedwewe 6

United States v. Levite, 25 M.J. 334 (C.M.A.

re lee ei uy 9a

United States v. Littrice, 3 U.S.C.M.A. 487, 13

ot re ween de ews 7

United States v. Miller, 19 M.J. 159 (C.M.A.

Rea ee hire ok elev aa ou cade eet 8

United States v. Remai, 19 M.J. 229 (C.M.A.

iS vale a bush wh ik odin Vidor dad ewe 0 6

United States v. Smart, 21 M.J. 15 (C.M.A. 1985). 5,8

United States v. Sparrow, 33 M.J. 110 (C.M.A.

Ne a ee ra Mia ba cn a tk ww 4 6

United States v. Thomas, 22 M.J. 388 (C.M.A.

ee eee UUs Nee weak ns dd eue eee ¥ 5,6, 9a

Waller v. Swift, 30 M.J. 139(C.M.A. 1990) ...... 10

United States v. Baum, 30 M.J. 626 (N.M.C.M.R.

i es ar an tglg'a da ade'landes 8

UCMJ ARTICLES:

EE See hep bea oaks see nis lace e aies . 2, $, 9a

In the Supreme Court of the United States

OCTOBER TERM, 1995

No.

JOHN H. REYNOLDS, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

PETITION FOR WRIT OF CERTIORARI

The petitioner, John H. Reynolds, respectfully prays

that a writ of certiorari issue to review the order and judg-

ment of the United States Court of Military Appeals

entered on 15 September 1994.

OPINIONS BELOW

The order and judgment of the United States Court of

Military Appeals, is reported at 40 M.J. 198 (C.M.A.

1994), and reprinted at Appendix A. The decision of the

United States Air Force Court of Military Review, is un-

published opinion ACM 828520 (AFCMR 1993), and is re-

printed at Appendix B.

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on 15 September 1994. The jurisdic-

tion of this Court is invoked under 28 U.S.C.A. § 1259(3)

(Supp. 1993) and 10 U.S.C.A. § 867(a) (Supp. 1993).

(1)

to

STATUTORY PROVISION INVOLVED

Article 37, U.C.M.J. (M.C.M., 1984), 10 U.S.C.A.

837, states,

Unlawfully influencing action of court. (a) No

authority convening a general, special, or sum-

mary court-martial, nor any 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 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 un-

authorized means, influence the action of a

court-martial or any other military tribunal or

any member thereof, in reaching the findings or

sentence in any case, or the action of any conven-

ing, approving, or reviewing authority with

respect to his judicial acts. The foregoing provi-

sions of the subsection shall not apply with

respect to (1) general instructional or informa-

tional courses in military justice if such courses

are designed solely for the purpose of instructing

members of a command in the substantive and

procedural aspects of courts-martial, or (2) to

statements and instructions given in open court

by the military judge, president of a special

court-martial, or counsel.

STATEMENT OF THE CASE

The petitioner was convicted, in accordance with his

pleas, of one specification of wrongfully mailing one-

fourteenth of an ounce of hashish to his brother. As the

appellant’s providency inquiry proceeded, the convening

authority held a group stand-up briefing which was at-

tended by four potential court members— Major Smith,

Major Schmidt, Captain Kolenda, and Captain Ballard.

R. 65, 69. Captain Kolenda was eventually excused from

serving as a member. After the convening authority, as

was his practice, offered the opportunity to others in the

room, he made his own comments on a variety of subjects.

R. 66. On this day, his comments included expressions of

misgiving at the outcomes of the recent courts-martial. R.

66. Among other things his comments included that he

wanted to make sure “everybody knew what his attitude

was about service on courts-martial, that he was to an ex-

tert dissatisfied with the results of courts that occurred

over the last couple of years.” R. 66. The convening

authority stated, in effect, that anyone who is caught using

drugs or in any way dealing with drugs, he wanted to make

them a civilian as soon as possible and that the members

should keep in mind that normally when someone gets to

the court-martial phase of a procedure there are several

things probably in the past that would warrant them being

discharged from the Air Force. R. 84, 87. He told the

members of the group that he expected them “to do the

right thing.” R. 72. Captain Murphy, the staff judge ad-

vocate, who was in attendance, attempted to diplomati-

cally correct the problem by stating, at that point in the

briefing, that the members are only asked to use their

“common sense and knowledge of human nature and the

ways of the world.” R. 67.

At trial the members were voir dired on the matter and

all stated, in effect, that they could still fairly judge the

case. Major Smith felt the convening authority was trying

to stress that junior officers needed to understand the

“severity of what court-martials [sic] are all about.” R. 73.

4

She believed that the convening authority’s point was that

“The time is now to get people experienced so they know

how to look at things and they know how to listen, and

they know how — again, consider severity.” R. 74.

One week after the sentence was adjudged, a post-trial

session was conducted pursuant to R.C.M. 1102 to investi-

gate allegations, arising from statements of Captain

Taylor, of unlawful command influence and juror miscon-

duct during the sentencing deliberations. R. 187-209. Cap-

tain Taylor indicated that the president, Major Smith, ex-

ceeded the boundaries of free and robust discussion of her

point of view as to an appropriately severe sentence. R.

189. He stated that Major Smith exerted pressure to per-

suade members to impose a higher sentence, by using

superiority of rank. R. 193. Apparently, this resulted in, at

least one member backing down and “set the tone” for

deliberations. R. 193. Captain Taylor believed that “Major

Smith’s behavior went beyond her proper role because she

was pressuring others that if they did not vote for her

specific sentence they “were not doing their jobs.” R. 194.

Notably, this is consistent with Major Smith’s perception of

the convening authority’s message at the group stand up —

that officer’s make sure junior officer’s know their “respon-

sibilities as court members.” R. 74. Major Smith’s views, as

espoused during deliberations, are also consistent with

those expressed opinions of the convening authority that

anyone “convicted of drugs in any way, he would recom-

mend that, basically, under any circumstances, they would

be discharged from the Air Force.” R. 87. In response to

Captain Taylor's confronting the president, Major Smith

_ pointed out she was the president and a commander. All in

all, Captain Taylor felt a more open discussion should have

occurred rather than Major Smith’s “ramrod” of her posi-

tion. R. 195.

5

The petitioner, fearing a worse sentence, did not pursue

this matter, despite the fact trial defense counsel felt there

was “ample basis” to look further. R. 199-204. The Air

Force Court ruled that the convening authority’s com-

ments did not generate any unlawful command influence.

App. at 3. The Air Force Court of Military Review did not

find waiver by the absence of any challenges for cause, but

ruled that the absence of challenges for cause contributed

to their conclusion that the members were not affected by

the comments. The Court of Military Appeals, however,

while finding that the comments were inappropriate, held

that the comments did not proximately cause the members

to award petitioner a more severe sentence than he would

otherwise have received. The Court further found that as

to the conduct of Major Smith, the matter was waived.

REASON FOR GRANTING THE WRIT

The petitioner had an absolute right to be tried by an

impartial panel of members who would resolve his case

with a fair and open mind. United States v. Smart, 21

M.J. 15 (C.M.A. 1985); United States v. Davenport, 17

M.J. 242 (C.M.A. 1984). Court-martial members must be

persons whose impartiality is not reasonably open to ques-

tion. United States v. Glenn, 25 M.J. 278 (C.M.A. 1987).

R.C.M. 912(f)(1)(N) (M.C.M., Part II, 1984) provides

that a member shall be excused for cause whenever it ap-

pears that the member should not sit as a member in the

interest of having the court-martial free from substantial

doubt as to the legality, fairness, and impartiality.

The petitioner was entitled to a fair trial that was free of

even the appearance of command influence. Article 37,

UCMJ, 10 U.S.C. § 837 (1988). “Command influence is

the mortal enemy of military justice.” United States v.

Thomas, 22 M.J. 388, 393 (C.M.A. 1986). Where the

6

target of command influence ts the court-members, “then

the tendency is to deprive the accused of his right to a

forum where impartiality is not impaired because the court

personnel have a personal interest in not incurring re-

prisals by the convening authority due to a failure to reach

his intended result.” /d. at 393. Because the error is of con-

stitutional import, the violation must be considered prej-

udicial unless proven harmless beyond reasonable doubt.

Chapman v. California, 386 U.S. 18 (1967); United States

v. Thomas, 22 M.J. at 395; United States v. Remai, 19

M.J. 229 (C.M.A. 1985).

Further, the issue is not waived simply by a failure of

defense counsel to raise it at trial. United States v.

Johnston, 39 M.J. 242 (C.M.A. 1994). The Court of Ap-

peals for the Armed Forces has previously expressed a

“special interest” in even the possibility of command in-

fluence, such that the discretionary doctrine of waiver

should not be applied to blind the Court to the convening

authority’s malfeasance. United States v. Sparrow, 33

M.J. 110, 112 (C.M.A. 1991).

In Sparrow, the trial counsel argued that the convening

authority selected the members because he trusted their

good judgment and was confident that they would “do the

right thing.” The Court found that, given the susceptibility

of trial counsel’s language to a “sinister” interpretation, it

was error to bring the convening authority into the court

room. The Court declined to find plain error because,

unlike the language in the present case, the language used

by the trial counsel was relatively unoffensive and surely

had no effect on the ultimate decision.

Herein, the convening authority infused his command

authority directly into the proceedings, by admonishing

these members that punitively separating these people who

go to court-martial, especially in drug cases like appel-

7

lant’s was appropriate and by advising them that they

should keep in mind that there is usually more to the story

than you will know. R. 87.

The SJA’s efforts, however well intentioned, com-

pounded rather than cured the error. His statements — that

the members should use their common sense and knowl-

edge of human nature and the ways of the world — made

after the convening authority told the members “that nor-

mally when someone gets to the court-martia! phase of a

procedure, there are several things probably in the past

would warrant them being discharged from the Air

Force.”' R. 87. Under these circumstances, the reasonably

drawn inference from the SJA’s comment, is that the

members could find that such evidence of prior miscon-

duct warranting discharge existed, by using their common

sense and knowledge of the ways of the world, even

though such evidence was not presented to them during

the court-martial.

The impact on the members was clear. With the conven-

ing authority’s “admonitions ringing in their ears, the

members heard the merits of this case. It requires little im-

agination to arrive at a reason why a” punitive discharge

was imposed. United States v. Littrice, 3 U.S.C.M.A. 487,

495, 13, C.M.R. 43, 51 (1953). This is a case where a puni-

tive discharge was not mandated. The petitioner had

served for over 11 years with good duty performance and a

clean disciplinary record. He was convicted by a special

court-martial of sending his brother, after persistent cajol-

ing, a fourteenth of an ounce of marijuana (hashish). A

defense counsel could legitimately assess this case as hav-

ing a good possibility of not resulting in a punitive

discharge.

' This comment indicates that even convening authorities confuse

punitive discharges with administrative discharges

8

Trial counsel argued for a bad conduct discharge, two

months confinement, a reduction to E-3, and forfeitures

in the members’ discretion. R. 164-167. This is far less

than the jurisdictional limits of a special court-martial.

This was not an overly serious offense. The petitioner

mailed an extremely small amount of marijuana to his

brother who had raised him. Trial defense counsel argued

against a punitive discharge and lengthy confinement,

opining that an appropriate sentence included three

months of hard labor without confinement and a reduc-

tion to E-3. R. 167-174. The members, following the dic-

tates of the convening authority, determined that an in-

dividual who had a clean military record and 11 years of

service deserved a punitive discharge for mailing a four-

teenth of an ounce of marijuana. But for the convening

authority’s comments, a punitive discharge would never

have been seriously considered by the members, it was a

wholly inappropriate form of punishment in this case.

Thus, regardless of the perfunctory declarations by the

court-members that they could be impartial notwithstand-

ing the convening authority’s comments, no matter how

sincere, the taint impacted their deliberations. United

States v. Smart, 21 M.J. 15 (C.M.A. 1985); See, United

States v. Miller, 19 M.J. 159, 164 (C.M.A. 1985); United

States v. Baum, 30 M.J. 626 (N.M.C.M.R. 1990).

In United States v. Brice, a case involving a far less

severe intrusion by the convening authority, the Court of

Appeals for the Armed Forces required a mistrial. 19 M.J.

170 (C.M.A. 1985). Therein, the convening authority,

during trial, lectured all officers, including the court

members, regarding the evils of drug offenses and told

them that drug offenders should be out of the Marine

Corps.

Trial defense counsel failed to challenge for cause any

member of the court-martial. Perhaps, this was due to the

9

dilemma of possibly giving this convening authority

another opportunity to select new members. However, as

to the statements of the convening authority, this issue has

not suffered waiver.

The extent that the taint affected their deliberations is

seen through the second error in this case. Attention was

brought to this problem by a report that the president,

Major Smith, an attendee at the Group Stand Up, had em-

ployed her rank to pressure junior members of the court to

adjudge a more severe sentence.? Through testimony there

was evidence of overbearing through the president’s use of

rank to inhibit the full and free deliberative process of the

jury. United States v. Accordino, 20 M.J. 102 (C.M.A.

1985). The military judge agreed that this raised troubling

issues Of juror misconduct and command influence. R.

208.

After Captain Taylor testified, trial defense counsel in-

dicated that petitioner desired to “waive any further in-

vestigation and any finding that would result in that in-

vestigation.” R. 199. The decision was based, in part, on

appellant’s fear that, if a rehearing on sentence were to oc-

cur, he might have to spend time in jail, notwithstanding

the fact that the first sentencing body adjudged no con-

finement. /d. The military judge explained to petitioner

that, while he would not be subject to both a bad conduct

discharge and confinement, he would tell the members

that they could impose a bad conduct discharge or con-

finement. R. 202.

2? While Captain Taylor does not directly state what aspect of the

punishment was involved, one can gather from the nature of the dis-

cussion, as well as the comments of trial defense counsel, that the dis-

agreement amongst the members centered around whether or not a

punitive discharge was appropriate.

10

Under the circumstances of this case, any substitution

of confinement for the punitive discharge would increase

the severity of punishment. As detailed in appellant’s

unsworn statement, R. 145-48, and in the defense post-

trial submissions, petitioner found out in November, 1990

that his wife was pregnant with their first child, which was

due in July 1991. Confinement, therefore, worked a unique

hardship in this case. A substitution of any term of con-

finement for the punitive discharge, therefore, was wholly

inappropriate. Waller v. Swift, 30 M.J. 139 (C.M.A.

1990). While this Court has ruled that confinement can be

substituted for a punitive discharge, a determination of

which of two sentences is less severe “cannot be handled

mechanically.” United States v. Hodges, 22 M.J. 260, 262

(C.M.A. 1986).

The appellant’s expressions to the military judge, be-

cause they were premised on the military judge’s instruc-

tion that confinement could be imposed, should not be

deemed to waive the command influence issue in this

regard. Even had the petitioner pursued this issue at the

post-trial session he would only have faced a new group of

officers selected by the same convening authority, and

equally infected by the convening authority’s statements at

the wing stand up.

The prejudice of the error is obvious. Due to the im-

proper use of rank the sentencing process was unfairly

tilted in favor of a more severe punishment. Just as the

convening authority directed in his staff meeting, the

president persuaded the other members that, because this

case involved drugs and “Air Force policy” prohibited

drug abuse, they were not “doing their job” if they didn’t

give petitioner a punitive discharge, notwithstanding any

extenuating or mitigating circumstances.

11

CONCLUSION

The question presented is essential to protecting the

military justice system from unlawful command influence.

It is especially important in this matter where the essence

of the command influence has impacted the fair and free

deliberations of the court-martial members in reaching a

decision in the petitioner’s case.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

MARGE A. OVERLY

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

December 1994

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 93-0632

CMR No. 828520

UNITED STATES, APPELLEE,

Vv.

JOHN H. REYNOLDS, STAFF SERGEANT

U.S. AiR FORCE, APPELLANT.

Argued March 17, 1994.

Decided September 15, 1994.

Counsel

For Appellant: Captain Robert J. Smith (argued); Col-

onel Jay L. Cohen (on brief); Colonel Terry J.

Woodhouse.

For Appellee: Captain Timothy G. Buxton (argued);

Colonel Jeffery T. Infelise and Captain Jare M.E. Peter-

son (on brief); Lieutenant Colonel Thomas E. Schlegel.

Military Judge: Dennis L. Olson

Opinion of the Court

Cox, Judge:

Appellant, while stationed at Soesterberg Air Base in

the Netherlands, mailed two grams of marijuana in the

(la)

2a

form of hashish to his brother in the United States. Ap-

pellant pleaded guilty to one specification of distribution

of hashish, in violation of Article 112a, Uniform Code of

Military Justice, 10 USC § 912a. A special court-martial

composed of officer members sentenced him to a bad-

conduct discharge and reduction to the lowest enlisted pay

grade. Following a post-trial session under Article 39(a),

UCMJ, 10 USC § 839(a), addressing the possibility of

unlawful command influence and juror misconduct, the

convening authority approved the sentence. The Court of

Military Review affirmed the findings and sentence in an

unpublished opinion dated January 22, 1993.

We granted review to consider: (1) the possibility of

command influence arising from the convening authority’s

expression of dissatisfaction with past court-martial

sentences in the presence of four potential members of ap-

pellant’s panel; and (2) the potential of command in-

fluence upon junior members of the court-martial panel

by the actions of the president, who was present when the

convening authority expressed his dissatisfaction with

prior sentences. !

' The granted issues are:

I

WHETHER THE SENTENCE SHOULD BE DISAP-

PROVED BECAUSE THE CONVENING AUTHORITY’S

STATEMENTS, MADE WHILE THE COURT WAS

HOLDING AN ARTICLE 399A) SESSION AND IN THE

PRESENCE OF FOUR OF THE COURT MEMBERS, EX-

PRESSING HIS DISSATISFACTION WITH THE RE-

SULTS OF PRIOR COURTS-MARTIAL AT SOESTER-

BERG AB INFUSED UNLAWFUL COMMAND IN-

FLUENCE INTO THIS CASE.

WHETHER THE SENTENCE SHOULD BE DISAP-

PROVED BECAUSE THE PRESIDENT OF THE COURT-

3a

FACTS

A. Pretrial

After the military judge entered findings of guilty pur-

suant to appellant’s pleas and after the members assem-

bled, trial counsel called the court’s attention to comments

made at a morning briefing by the Commander of the 32d

Tactical Fighter Group, who was the special court-martial

convening authority. There were 15 to 20 people at the

briefing, 4 of whom were potential members of the court-

martial panel in appellant’s case. The staff judge advocate,

Captain Michael D. Murphy, was present at the meeting

and testified as follows:

We have a regular Group Standup at 0900

every morning. At this morning’s Standup, at

0900, the Commander of the 32d Tactical Fighter

Group made some comments concerning court-

martial membership. There were four of the

court members on this court present in the room

and I think it’s important to bring the —both the

comments by the Commander as well as my re-

sponse to those comments to the attention .. .

[of] the court, as well as the parties.

* * *

This morning the way the order of business

goes in Standup is that the Commander will

generally go around the table and when everyone

MARTIAL, WHO HAD BEEN SUBJECTED TO COM-

MENTS OF THE CONVENING AUTHORITY REGARD-

ING HIS DISSATISFACTION WITH THE RESULTS OF

RECENT COURTS-MARTIAL, EXERTED SUPERIORI-

TY OF RANK IN THE SENTENCING DELIBERATIONS

TO INCREASE THE SEVERITY OF APPELLANT'S

SENTENCE.

4a

else is finished speaking he will make comments

on a variety of subjects. This morning the Com-

mander said he wanted to make sure that every-

body knew what his attitude was about service on

court{s]-martial, that he was to an extent dissatis-

fied with the results of courts that occurred over

the last couple of years. He then proceeded to

talk about some thoughts about what his policy

was, and at that point he—I sit at the other end

of the table . . . about eight feet away from the

Commander. He looked down at me and said,

“Now stop me if I’ve gone too far,” and at that

point I said, “Sir, you have gone too far, and let

me add some comments, please.”

* x *

I then interrupted the Commander and said,

“Sir, | think it’s important, and I think it’s im-

portant for everybody in the room to know that

what the Commander expects when you’re ap-

pointed, or when you’re named to a court-

martial panel, is that you will bring your com-

mon sense, knowledge of human nature and the

ways of the world into the courtroom and noth-

ing else.” I intentionally said those words because

I knew that they would be instructions that the

military judge would later give the court

members.

I went on to say that when anyone is appointed

to a court panel at Soesterberg Air Base that the

Commander’s intention is that they should bring

nothing short of full, fair and impartial integrity

into the courtroom and make decisions based

solely on what they hear in the courtroom. That

was about the end of the discussion... .

Sa

The military judge proceeded to question the four

potential members who were present at the morning brief-

ing. First, he called Major Smith who recalled the state-

ments of both the commander and Captain Murphy. Re-

garding the commander’s comments, Major Smith stated:

Personally I didn’t get any message from it. |

have sat on a board before. I do have officers

that work for me now that have never sat on one

before and I took it in—to discuss, you know,

sitting On a court and your responsibilities as a

court member—with the junior officers that

work for me. That’s how I took it. I didn’t take it

in any other way.

Major Smith assured the judge she would not be influ-

enced by the commander’s comments and that her deci-

sions as a member would be made with a fair and open

mind based on the evidence presented in court.

Next, the military judge called Major Schmidt. The

judge asked Major Schmidt whether he thought the com-

mander was sending a message to the potential members as

to the results they should reach in this court-martial. Ma-

jor Schmidt responded:

No, not at all. I[—I don’t know how to say this

except that I feel like military professionalism

comes in here, that being appointed on the orders

and stuff —to where, if I told these folks that I’m

going to be fair and honest without any prejudice

one way or the other, that’s what I intend to do.

So, I don’t know how — you know, anything said

to me, how that’s going to affect anything.

Like Major Smith, Major Schmidt asserted he could arrive

at decisions based solely on the evidence presented in

court.

6a

Captain Kolenda also recalled the commander indirectly

expressing dissatisfaction with the results of courts-martial

in the past. When asked how the commander’s comments

affected him, Captain Kolenda replied:

Well, I’ve come through this process several

times. This is not my first court-martial and

although I thought it was an inappropriate com-

ment —this is my personal cpinion—I didn’t feel

like I was affected. I’ve been here three years. |

know Colonel Hagelin [the Commander] fairly

well. He is very direct about things. And I— you

know, I—I knew where he was coming from, but

| kind of shrugged it off. I just accepted that

as— you know, that’s his—that’s his way. No, I

did not—I don’t think I have any formed opin-

ion, other than just the reaction of what he was

saying.

Captain Kolenda testified that the commander’s remarks

would not affect his performance of his duties as a fair

and open-minded member.

Captain Ballard was the final member called for voir

dire. He recalled the commander saying, in effect, that

anyone involved with drugs in any way should be made “a

civilian as soon as possible” and that generally, when

someone is court-martialed, there are circumstances war-

ranting discharge. Captain Ballard surmised the com-

mander was trying to enforce “his personal drug policy.”

Ballard testified:

I was surprised by the comments. I — after the an-

nouncement was made later that we were, in fact,

going to be sitting on the court, I didn’t think

about it, and I thought —I don’t happen to share

his opinion. I—I would hope that we could all

come in here with an open mind and know that

7a

there are general policies, but ... each case

might have different circumstances that would

warrant, you know, the whole spectrum of pun-

ishment that we discussed—which goes from

zero punishment all the way up to the maximum.

Captain Ballard, too, considered himself capable of mak-

ing decisions solely based on the evidence presented in

court.

There were no challenges for cause, but the defense

exercised a peremptory challenge to excuse Captain Kolen-

da. The members of appellant’s court-martial panel ulti-

mately sentenced him to a bad-conduct discharge and

reduction to E-1.

B. Peost-trial

Pursuant to RCM 1102, Manual for Courts-Martial,

United States, 1984, a post-trial Article 39(a) session was

held to investigate the possibility of unlawful command in-

fluence during sentencing deliberations. Captain John E.

Taylor, who served as a member on appellant’s court-

martial panel, testified that he felt the president of the

panel, Major Smith, was “pushing . . . for [a] particular

sentence.” According to Captain Taylor, when Major

Smith referred to another member of the court as “Cap-

tain,” it was clear her “tone of voice” was intended to im-

press upon the captain his inferiority in rank. Similarly,

when one member discussed his view of an appropriate

sentence, Major Smith accused him of “condon[ing] the

use of drugs” in the Air Force. Captain Taylor thought

Major Smith pressured the panel to reach a certain result,

implying if they did not, they “were not doing [their]

jobs.”

Following Captain Taylor’s testimony, defense counsel

stated his client “would waive any further investigation

8a

and any finding that would result.” Although defense

thought there might be “ample basis” to pursue the possi-

bility of unlawful command influence, appellant declined

further inquiry into the matter because of the possibility

that, upon a rehearing, he could receive “confinement in

lieu of the bad-conduct discharge.” Defense counsel stated

his “client [did] not want to spend a day in prison.” Appel-

lant’s wife was pregnant at the time of his court-martial,

and he was eager to locate a house and secure a job to sup-

nort his family.2 The military judge found appellant

“knowingly, and voluntarily, and consciously waived his

right to any further investigation” into the possibility of

command influence on his court-martial, his right to a

finding by the military judge, and his potential right “to a

sentence rehearing.” Thus, the military judge reached no

conclusions as to the propriety of Major Smith’s alleged

comments.

ISSUES

I

The first granted issue asks whether appellant’s sentence

should be set aside because of the commander’s statement

to the four potential panel members regarding his opinion

of prior sentences. We agree with the Court of Military

Review that the commander’s remarks were inappropri-

> When the military judge asked appellant why he chose to “pursue

the matter” of potential command influence and “run the risk of a

rehearing” on sentence, appellant responded:

Well, Your Honor, I’ve been getting my resumes together,

and, like I said, my life has been on hold for the last four

months. And with my wife being pregnant, I can’t do her any

good in jail, and at E-1 pay I can’t very well support us. And

1 need to find a house, I need to find a job, and that right

now is my most important issue.

_ Ga

ate.» When the issue of command influence has been

raised, we will go to great lengths to ensure beyond a

reasonable doubt that the decisions of the members were

not tainted by illegal command influence. United States v.

Levite, 25 MJ 334, 338 (CMA 1987); United States v.

Thomas, 22 MJ 388, 394 (CMA 1986), cert. denied, 479

U.S. 1085 (1987). See Chapman v. California, 386 U.S. 18

(1967). However, there must be more than a mere appear-

ance of evil to justify appellate action. United States vy.

Allen, 33 MJ 209, 212 (CMA 1991), cert. denied, ____

U.S. ___, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992). Preju-

dice is not presumed. The issue of unlawful command in-

fluence must be alleged with particularity and substantia-

tion. For an accused to be entitled to appellate action on

his case, the unlawful influence must be the proximate

* Article 37(a), Uniform Code of Military Justice, 10 USC §837(a),

States:

No authority convening a general, special, or summary

court-martial, nor any other commanding officer, may cen-

sure, reprimand, or admonish the court or any member,

military judge, or counsel thereof, with respect to the find-

ings 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 ac-

tion of a court-martial or any other military tribunal or any

member thereof, in reaching the findings or sentence in any

case, or the action of any convening, approving, or review-

ing 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 courses are designed solely for the purpose of

instructing members of a command in the substantive and

procedural aspects of courts-martial, or (2) to statements

and instructions given in open court by the military judge,

president of a special court-martial, or counsel.

10a

cause of the unfairness of his court-martial. Each case

should be considered on its own facts. 25 MJ at 341 (Cox,

J., concurring). :

Majors Smith and Schmidt, and Captains Kolenda and

Ballard all testified that their decisions as members would

not be influenced by the commander’s opinion of prior

sentences, but they would arrive at decisions in appellant’s

case solely on the basis of evidence presented at appellant’s

court-martial. Moreover, appellant made no challenges

for cause. Captain Kolenda was the only potential member

excused, and he was excused by appellant’s peremptory

challenge. The military judge instructed the members not

to consider anything other than matters “admitted into

evidence.” The members are presumed to have followed

these instructions. United States v. Pollard, 38 MJ 41, 52

(CMA 1993), citing United States v. Ricketts, 1 MJ 78, 82

(CMA 1975). Moreover, having “waive[d] any further in-

vestigation and any finding that would result” on the

ground that he did not want his sentence altered, appellant

is not in a good position to argue that he was prejudiced as

to sentence. We are not persuaded the commander’s com-

ments proximately caused the members to award appellant

a more severe sentence than he would otherwise have re-

ceived. We are convinced, beyond a reasonable doubt,

that appellant’s sentence was not tainted by undue com-

mand influence.

Next, we consider whether appellant’s sentence should

be set aside because the president of the court-martial

allegedly exerted superiority in rank during sentencing

deliberations to increase appellant’s sentence. As noted,

appellant affirmatively waived further inquiry and any

findings or rulings on the matter during the Article 39(a)

lla

session. But cf. United States v. Sparrow, 33 MJ 139

(CMA 1991) (trial defense counsel failed to object but this

Court did not apply the rule of waiver because of its

special interest in the possibility of command influence).

Unlike the preceding issue, however, it is not even clear

that Major Smith’s alleged comments exceeded the bounds

of that open and robust expression of opinion expected of

court-members. In any event, appellant’s express and

voluntary waiver precluded further inquiry. Under these

circumstances, we are satisfied beyond a reasonable doubt

that appellant has suffered no prejudice as to his adjudged

sentence.

The decision of the United States Air Force Court of

Military Review is affirmed.

Judge CRAWFORD concurs.

12a

Wiss, Judge (concurring in part and in the result):

| agree with the lead opinion’s treatment and resolution

of Issue 1. That opinion quite properly labels the com-

mander’s remarks in question here as “inappropriate.”

____ MJ at (7). They were at least that. At the same time,

the record reflects that the staff judge advocate laudably

acted promptly to cut the remarks off at the pass in order

to prevent further damage and that, after the bright light

of day had been shined on the fact of the improper com-

ments and on their potential effect on appellant’s court-

martial, all involved were convinced that the four

members in question could continue to sit and to act im-

partially. I am similarly convinced beyond a reasonable

doubt. See United States v. Thomas, 22 MJ 388, 394

(CMA 1986), cert. denied, 479 U.S. 1085 (1987).

When unlawful command influence is established, it

must be roundly and unquestionably condemned. When,

however, there is no discernible prejudice to a particular

accused, no action is warranted that addresses the findings

or sentence in that case. Jd. Accord United States v. Allen,

33 MJ 209 (CMA 1991), cert. denied, 112 S.Ct. 1473

(1992); United States v. Cruz, 25 MJ 326 (CMA 1987).

There must be harm to be redressed before a remedy is ap-

propriate. I agree with the lead opinion that, thanks to the

staff judge advocate and the thorough voir dire of the

members on the issue, there is no harm to be redressed

here.

As to Issue II, however, I find that I am not in agree-

ment with any of my colleagues, so | must write briefly to

explain my vote to affirm the decision below in rejection

of appellant’s claim of reversible error.

13a

Judge Gierke in dissent unequivocally concludes fhat

advice to appellant was erroneous that he might suffer

some portion of confinement at a sentence rehearing in

lieu of the adjudged bad-conduct discharge. He cites

Waller v. Swift, 30 MJ 139 (CMA 1990), in support.

MJ at (3). I infer that the Chief Judge in dissent agrees

with Judge Gierke’s view of this advice.

1 do not read Waller in this way, however. In fact, I

believe that a careful reading of Waller, including the

cases cited and discussed therein— such as United States y.

Hodges, 22 MJ 260 (CMA 1986); United States y.

Darusin, 20 USCMA 354, 43 CMR 194 (1971); United

States v. Brown, 13 USCMA 333, 32 CMR 333 (1962); and

United States v. Prow, 13 USCMA 63, 32 CMR 63

(1962)—actually underlines the wisdom of defense

counsel’s advice to appellant that he might lawfully be ad-

judged some period of confinement as a less severe punish-

ment of the bad-conduct discharge. At best, Waller y.

Swift, supra, rationally leaves open the possibility that,

under the circumstances of this case, any confinement

would be found to be more severe than a punitive dis-

charge; it does not, however, assure such a conclusion.

In this light, then, the portion of the record quoted ex-

tensively by the Chief Judge (___ MJ at (2-7)) leaves no

room to doubt that appellant’s waiver was both knowing

and intelligent. He knew exactly what he was doing and

why he was doing it.

That leads, however, to the troublesome question posed

by the Chief Judge concerning whether such a waiver

should be permitted where it would in effect turn off the

investigative light that is in search of command influence.

There is something to be said for the notion that command

influence is such an insidious evil—one that, if unrooted

and uncorrected, would threaten to rot from within both

l4a

the reality and the perception of the integrity of the mili-

tary justice system —that the institutional interest in pur-

suing it goes beyond one accused’s own perception of his

private benefit from not uncovering it. See generally Weiss

v. United States, ____ U.S. ‘ , 114S.Ct. 752, 762

(1994) (“[The United States Court of Military Appeals] has

demonstrated its vigilance in checking any attempts to ex-

ert improper influence over military judges.”).

I need not resolve this question for myself in this case,

however. I am satisfied that the record as already estab-

lished —though its full development was cut short by ap-

pellant’s action—is entirely adequate to see what went on

in the members’ deliberation room. There is no margin in

this system for such heavy-handed shenanigans, and they

must be judicially stomped into oblivion whenever they

appear.

As mentioned earlier, though, the fact of command in-

fluence, however condemnable, does not prompt judicial

action in response where an appellate court is convinced

beyond a reasonable doubt that the proceedings are free

from prejudicial influence. Appellant was sentenced to a

bad-conduct discharge and reduction to the lowest enlisted

grade—no confinement, no fine, and no forfeitures. He

almost sprinted to evade any possibility that his punitive

discharge would be converted into any term of confine-

ment. In this posture and in the safe assumption that ap-

pellant’s crime would result in a sentence at a rehearing

that would contain something more onerous than mere

reduction in grade, there is no doubt in my mind that ap-

pellant did not suffer prejudice from the unlawful com-

mand influence by the president of the court-martial dur-

ing sentence deliberations.

Accordingly, as to Issue II, I join in affirming the deci-

sion below.

lSa

SULLIVAN, Chief Judge (dissenting):

I am not “convinced, beyond a reasonable doubt, that

appellant’s sentence was not tainted by undue command

influence.” ____ MJ at (8). See United States v. Thomas,

22 MJ 388 (CMA 1986), cert. denied, 479 U.S. 1085

(1987). Under the circumstances of this case, the judge

should have declared a mistrial because substantial doubt

existed as to the fairness of the proceedings. On appeal |

cannot say with any degree of certainty that this jury panel

was untainted by command influence. The affirmance of a

conviction that may be tainted with command influence

would be inconsistent with the very purpose of the crea-

tion of this Court by Congress.

Moreover, I would not find waiver by appellant where

the military judge made clear that appellant would risk

confinement if he chose to pursue this matter. See general-

ly United States v. Sparrow, 33 MJ 139 (CMA 1991). The

provision for rehearings in the Uniform Code of Military

Justice (Art. 63, UCMJ, 10 USC § 863 (1983)) was not

designed to discourage litigation of unlawful-command-

influence issues. See Waller v. Swift, 30 MJ 139 (CMA

1990).

The record of trial in this case clearly established that

appellant’s potential waiver was not voluntary:

All right. Captain Swanton, do you

want—what is your position right now,

after hearing Captain Taylor’s comments?

Do you wish further investigation into this

matter?

DC: No, sir, as Defense Counsel, I don’t, and I

believe my client, after I’ve spoken with

Sergeant Reynolds, does not want any fur-

ther investigation. In fact, would waive

any further investigation and any finding

that would result in that investigation.

MJ:

mm:

MJ:

Ten

MJ:

l6a

And may I ask what was prompting his —

I'll question him, but right now, what is

prompting your client not to press forward

with this matter? Do you feel that there is

no basis for it at this point, or some other

considerations?

No, sir. In fact, I believe there is probably

ample basis on two accounts, but in this

particular case I’ve spoken with Sergeant

Reynolds, he understands that, in fact, if

you were to find that there was undue

command influence, unlawful command

influence and found that that was preju-

dicial that you, in fact, could order that

there be a mistrial for sentencing. Of

course, if there were a mistrial for sentenc-

ing, Sergeant Reynolds understands there

would be a new rehearing on sentencing

involving new members. And in that case

he also understands that the maximum

punishment that he could get would be the

bad-conduct discharge and reduction to

E-1 that he originally got, but, also, he

could end up getting six months or less in

confinement in lieu of the bad-conduct

discharge, and my client does not want to

spend a day in prison—very simply put.

Does the government wish or have any

concerns or wishes to pursue this investi-

gation any further in view of the accused’s

comments?

No, Your Honor... .

All right. Sergeant Reynolds (standing) —

you can remain seated. (Complied.) You

. =~" 4" > a ee

ACC:

MJ:

ACC:

MJ:

‘17a

have heard Captain Taylor and his

testimony. Your counsel has indicated on

your behalf that she does not request that I

pursue the matter any further in terms of

calling any other court members. Are

those your desires?

Yes, Your Honor. I’m concerned about

going [on] with my life.

You’re concerned about what, I’m sorry?

I’m concerned about what went on, but

I—right now my most important thing is

getting on with my life. It’s kind of been

put on hold for quite a while.

All right. I would like you to understand

that this court could go ahead and call Ma-

jor Smith and the other court members

and, after having heard all those members,

I would then be in a position whether |

would have to make a decision of whether

there was any undue command influence.

And, obviously, I would allow your at-

torney and the government to present

whatever evidence and argument they

wished on that matter.

I could, as a result of the hearing, I could

rule that there is no issue of unlawful com-

mand influence because of the president’s

actions in dealing with the other court

members, in which case this case would

then continue on in the normal process of

the post-trial review of the case. On the

other hand, I could rule that—yes, there

has been unlawful command influence,

ACC:

MJ:

ACC:

MJ:

18a

and then the question would be, Sergeant

Reynolds, what remedy are you entitled

to.

One of those remedies could be me declar-

ing a mistrial as to the sentence that you

received. Do you understand that?

Yes, Your Honor.

A mistrial where there’s been a manifest

injustice to your rights and to your —the

fairness of these proceedings. As a result

of that mistrial, then the convening

authority could direct a rehearing on the

sentence. Do you understand that?

Yes, I do, Your Honor.

Okay. Now, there are certain things that

would happen at a rehearing. As your

counsel has indicated, the initial thing that

wouid be a concern to you as to what

possible sentence you could receive. The

rules are quite clear that the sentence that

you—the maximum sentence you could

receive at a rehearing could not be any

more severe than that already adjudged.

In your particular case, that’s a _ bad-

conduct discharge and reduction to E-1 —

you received no confinement.

However, at a rehearing the court

members could adjudge a lesser sentence.

And I believe the law is still clear that a

period of confinement is less than a bad-

conduct discharge. So, while they could

not give you both confinement and a dis-

charge, they could give you confinement

ACC:

MJ:

ACC:

MJ:

19a

but no discharge, and I would instruct

them on that, or whoever — judge held —

had the rehearing would instruct them that

they could not give you both, but that they

could give you confinement and no bad-

conduct discharge or a bad-conduct dis-

charge and no confinement.

Do you understand that?

Yes.

Now, at this rehearing on sentence you

would have certain rights, again, that you

could exercise prior to that rehearing. One

of those rights would be to decide whether

you wanted to go with, again, officer

members, or, if you wish, you could again

request that at least one third of the

members be enlisted personnel.

Do you remember those rights that we

talked about before?

Yes, sir.

The same rights would apply to a rehear-

ing. This would be a different court, by

the way. It would not be the same

members who sat and heard your case

before. It would be a totally different

court, and you could have enlisted

members up to one-third. Or, you could

request, again, trial by judge alone as far

as sentencing goes, also, in which case I or

another judge would then decide on what

sentence you would receive.

Do you understand that?

20a

ACC: Yes, Your Honor.

MJ: I suppose there is one other alternative,

also. | suppose we could proceed through

with investigating the entire matter and

then you could just go ahead and waive

any rehearing at all. That way we would —

we would pin down and have a judicial

determination by me as to whether there

was, in fact, any unlawful command in-

fluence and then you could say at that

point—however, Your Honor, even

though you’ve decided there is unlawful

command influence, I don’t want you

to—I don’t way any remedy, I want to let

the case stand as it is. That’s a possibility.

Would you want that one?

ACC: No, Your Honor.

MJ: And could I ask you—why not, again?

What is motivating you right now? Why

don’t you want to pursue the matter any

further and run the risk of a rehearing?

ACC: Well, Your Honor, I’ve been getting my

resumes together, and, like I said, my life

has been on hold for the last four months.

And, with my wife being pregnant, I can’t

do her any good in jail, and at E-1 pay I

can’t very well support us. And I need to

find a house, I need to find a job, and that

right now is my most important issue.

(Emphasis added.)

Article 63 (1983) provides:

§ 863. Art. 63. Rehearings

Each rehearing under this chapter shall take

place before a court-martial composed of mem-

21a

bers not members of the court-martial which first

heard the csae. Upon a rehearing the accused

may not be tried for any offense of which he was

found not guilty by the first court-martial, and

no sentence in excess of or more severe than the

original sentence may be imposed, unless the

sentence is based upon a finding of guilty of an

offense not considered upon the merits in the

original proceedings, or unless the sentence pre-

scribed for the offense is mandatory. If the

sentence approved after the first court-martial

was in accordance with a pretrial agreement and

the accused at the rehearing changes his plea with

respect to the charges or specifications upon

which the pretrial agreement was based, or other-

wise does not comply with the pretrial agree-

ment, the sentence as to those charges or speci-

fications may include any punishment not in ex-

cess of that lawfully adjudged at the first court-

martial.

(Emphasis added.) RCM 810(d)(1), Manual for Courts-

Martial, United States, 1984, also provides:

(d) Sentence limitations.

(1) Jn general. Except as otherwise provided

in subsection (d)(2) of this rule, offenses on

which a rehearing, new trial, or other trial has

been ordered shall not be the basis for punish-

ment in excess of or more severe than the legal

sentence adjudged at the previous trial or hear-

ing, as ultimately reduced by the convening or

higher authority, unless the sentence prescribed

for the offense is mandatory.

(Emphasis added.)

22a

In my view these provisions were not designed to fore-

stall investigations of unlawful command influence or dis-

courage military accused from pursuing their rights to a

fair court-martial. Moreover, I do not think this Court

should be in the business of encouraging waivers of

command-influence issues. See Weiss v. United States,

sites: : , 114 S.Ct. 752, 762 (1994) (“That

court has demonstrated its vigilance in checking any at-

tempts to exert improper influences over military

judges.”); United States v. Sparrow, 33 MJ 139 (CMA

1991). Accordingly, I dissent from the holding of waiver.

23a

GIERKE, Judge (dissenting):

I disagree with the majority’s resolution of both granted

issues. Courts-martial must not only be fair; they must ap-

pear to be fair. Appellant’s case falls far short on the ap-

pearance of fairness.

With regard to the first granted issue, I find defense

counsel’s failure to challenge the four affected members

for cause inexplicable. There is no doubt that they should

not have sat as members “in the interest of having the

court-martial free from substantial doubt as to legality,

fairness, and impartiality.” RCM 912(f)(1)(N), Manual for

Courts-Martial, United States, 1984. Cf. United States v.

Glenn, 25 MJ 278 (CMA 1987) (court member’s familial

relationship with deputy staff judge advocate should have

been disclosed to preserve public confidence in fairness of

trial); United States v. Coffin, 25 MJ 32 (CMA 1987)

(court member who knew accused and had been present at

formation where accused was apprehended and accused of

being drug dealer “should not have sat” on case); United

States v. Smart, 21 MJ 15 (CMA 1985) (court member

who was multiple victim of similar crimes should not have

sat On case).

While I do not doubt the sincerity or honesty of the

members in their disclaimers regarding Colonel Hagvlin’s

comments, the conflict between their personal interests

and their sworn duty as court members demanded that

they be excused in the interests of justice. If counsel would

not challenge them, the military judge should have done so

sua sponte or declared a mistrial. See RCM 912(f)(4) and

RCM 915; United States v. Brice, 19 MJ 170 (CMA 1985)

(interruption of court-martial for anti-drug lecture by

Commandant of Marine Corps); United States v. Mc-

Cann, 8 USCMA 675, 25 CMR 179 (1958) (lecture by staff

judge advocate which discussed certain offenses, including

offense charged against accused).

24a

The failure of defense counsel to challenge the members

or request a mistrial should not result in waiver in this

case. This Court traditionally has not applied waiver for

violations of Article 37, Uniform Code of Military Justice,

10 USC § 837. See United States v. Blaylock, 15 MJ 190,

193 (CMA 1983) (“In view of the policy clearly stated in

Article 37, we have never allowed doctrines of waiver to

prevent our considering claims of improper command

control.”). Furthermore, even under traditional waiver

rules, the failure to remove the affected members or

declare a mistrial was plain error. See United States v.

Olano, 113 S.Ct. 1770, 1779 (1993) (error is plain if it

“seriously affect[s] the fairness, integrity, or public reputa-

tion of judicial proceedings”).

I also disagree with the majority’s disposition of the sec-

ond granted issue on the grounds of waiver. A waiver must

be knowing and intelligent. Appellant’s purported waiver

was based on the military judge’s questionable advice that

another trial could result in a sentence to confinement. In

another context, this Court has viewed the comparative

severity of sentences through the eyes of the accused and

has held that any sentence to confinement may be more

severe than a punitive discharge. See Waller v. Swift, 30

MJ 139 (CMA 1990). Under the circumstances of this

case, | am not satisfied that appellant made a knowing and

intelligent waiver of the command-influence issue.

25a

APPENDIX B

UNITED STATES AIR FORCE COURT

OF MILITARY REVIEW

ACM 828520

UNITED STATES

Vv.

STAFF SERGEANT JOHN H. REYNOLDS, FR258-25-3912

UNITED STATES AIR FORCE

22 January 1993

Sentence adjudged 8 March 1991 by SPCM convened at

Soesterberg Air Base, The Netherlands. Military Judge:

Dennis L. Olson.

Approved sentence: Bad-conduct discharge and reduc-

tion to E-1.

Appellate Counsel for the Appellant: Colonel Jeffrey R.

Owens and Captain Michael D. Burt

Appellate Counsel for the United States: Lieutenant

Colonel Brenda J. Hollis and Major Paul H. Blackwell,

Jr.

Before

O’HAIR, SNYDER and GRUNICK

Appellate Military Judges

26a

PER CURIAM:

Pursuant to his plea, appellant was found guilty of

transferring marijuana in the hashish form through the

mails from The Netherlands to his brother who resided in

the United States, in violation of Article 112a, UCMJ. His

sentence of a bad-conduct discharge and reduction to E-1

were approved by a substitute convening authority.

Before us, appellant challenges the validity of his

sentence by alleging that the court members were sub-

jected to unlawful command influence because of remarks

made to some of them by the special court-martial conven-

ing authority, their group commander. Appellant also

alleges that the president of the court-martial exerted un-

due influence upon the junior members of the panel dur-

ing sentence deliberation. We find no error and affirm.

After the military judge had entered a finding of guilty

to the Charge and specification, the court members were

brought in for sentencing. Near the conclusion of the voir

dire of the court members, the trial counsel informed the

court that he had just been provided some information

that should be brought to the attention of the court. To do

this, he called the base staff judge advocate who testified

that four of appellant’s court members had attended a

daily staff meeting chaired by the group commander

earlier that day. At the meeting, the commander opined he

was generally dissatisfied with the results of courts-martial

over the past several years, and he proceeded to express his

philosophy on the subject. The staff judge advocate was

also present during this meeting and, recognizing the im-

propriety of these remarks, he interrupted the commander

to explain to the attendees that it was important for court

members to bring their common sense and knowledge of

the ways of the world into the courtroom, and be fair and

impartial. He further advised “they should bring nothing

27a

short of full, fair and impartial integrity into the court-

room and make decisions based solely on what they hear

in the courtroom.” At the completion of the staff judge

advocate’s admonition the commander told him, “Your

{sic] right.”

After this disclosure these four court members were in-

dividually voir dired and asked to recite as much of the

convening authority’s admonitions as they could remem-

ber. Collectively, they believed the message to be that the

results of courts-martial in the past were somewhat disap-

pointing and that the commander attributed this to a

general lack of understanding as to the importance of

court-martial proceedings. To stem this trend the com-

mander thought junior officers should undergo a form of

training or exposure to these proceedings so they would

better appreciate the seriousness of such action. He con-

tinued by encouraging officers who had previously served

as court members to discuss their experiences with persons

who had not so served. He encouraged junior officers to

sit as spectators at future courts. With regard to a military

person who was involved with drugs in any way, he said he

would recommend they be discharged from the Air Force.

All members testified they would be fair and impartial

in arriving at a sentence for appellant and they did not feel

they had any obligation to attempt to please the com-

mander with any particular sentence. They agreed to ap-

proach their responsibilities with an open mind. At the

conclusion of their examination there were no challenges

for cause, but one of the four was peremptorily challenged

by appellant for no stated reason.

It is admirable the convening authority appreciated the

importance of duties as a court-martial member, but it is

unfortunate his prior training did not prevent him from at-

tempting to, however harmless he considered it, impose

his personal philosophy regarding sentencing of persons

28a

before a court-martial. There is no question that command

influence has no place in the courtroom and the remarks by

this convening authority could have been interpreted by his

audience as such. However, if after thorough questioning

by the counsel and military judge, each of the court

members exposed to this type of presentation by a com-

mander can unequivocably state that the comments by the

commander will not have an adverse impact on his or her

ability to render an impartial judgment, the member should

not be disqualified to sit. United States v. Thomas, 22 M.J.

388 (C.M.A. 1986). In conducting our review we must be

convinced, beyond a reasonable doubt, that the prejudice is

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

In the case before us, we view the commander’s remarks

as inappropriate, but uttered without malice or any at-

tempt to unlawfully influence the potential court

members. This is supported by his endorsement of the

staff judge advocate’s efforts to cure the misstatement.

Additionally, each of the affected court members agreed

' not to be improperly influenced by the remarks and, final-

ly, we cannot overlook the absence of any challenges for

cause against any of the members. In conclusion, we find,

beyond a reasonable doubt, no undue command influence

was generated by the commander’s poor choice of words

while philosophizing about recent courts-martial.

Several days after the trial concluded, one of the court

members, a captain, informed the defense counsel he be-

lieved the president of the court, a major, exerted undue

influence on the four captains on the court. This was

brought to the attention of the military judge and a post-

trial 39a session was convened. The complaining court

member was called as a witness and, in an inarticulate

fashion, attempted to describe how the president empha-

sized her superiority in rank during their sentencing

deliberations and tried to change that person’s mind re-

garding a proposed sentence.

29a

At the conclusion of the voir dire of the witness, the

defense informed the military judge they no longer chal-

lenged the conduct of the sentencing deliberations because

appellant was concerned they might be successful. If that

were the case, appellant articulated he would be entitled to

a new sentencing hearing, but stated he did not want to jeo-

pardize his present sentence of a bad-conduct discharge and

reduction in grade. He definitely did not want to receive

any confinement. As a result, he informed the military

judge he waived any issue of command influence by the

court president and wanted no further investigation of this

issue. The military judge conducted a thorough inquiry in

which he explained the procedures available to appellant in

a case of suspected command influence. At the conclusion

appellant reasserted his desire to terminate this investiga-

tion and keep the sentence already adjudged. We are con-

vinced appellant made a knowing waiver of his rights to a

further investigation of this command influence issue. See

United States v. Mack, ACM 28493 (A.F.C.M.R. 20

November 1990), rev’d on other grounds, 33 M.J. 251

(C.M.A. 1991). Even had we not found waiver, we find

that the captain described nothing more than spirited ex-

change among the court members during their deliberation,

an exchange which falls short of rising to the level of

unlawful command influence. Article 66(c), UCMJ.

We have considered the remaining assignment of error

and found it to be without merit.

Accordingly, the findings and sentence as approved on

review below are

AFFIRMED.

[SEAL OMITTED}

OFFICIAL

/s/ Naomi D. Allen

NAOMI D. ALLEN

TSgt, USAF

Chief Court Administrator, AFCMR

.« US GOVERNMENT PRINTING OFFICE: 1994— 124007