Petition for Writ of Certiorari — Ashby v. United States

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09-757 DEC 24 2009

No.09- OFFICE OF THE CLERK

—~ Willam K. Suter, Clerk

In The

SUPREME COURT OF THE UNITED STATES

RICHARD J. ASHBY, CAPTAIN,

UNITED STATES MARINE CORPS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorar1 To The

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

DILLON J. AMBROSE

Lieutenant,

JAGC, USN

Counsel of Record

1254 Charles Morris St

Bldg 58, Suite 100

Washington, D.C. 20374

(202)-685-7390

KATHLEEN L. KADLEC

Lieutenant,

JAGC, USN

Counsel

1254 Charles Morris St

Bldg 58, Suite100

Washington, D.C. 20374

(202)-685-5398

QUESTIONS PRESENTED

A right to speedy appellate processing, via the Due

Process clause, has been recognized by nearly every

federal circuit, without this Court’s comment. The

test established by this Court regarding Speedy Trial

violations has uniformly been adopted as the test to

determine whether a Due Process violation has

occurred for dilatory appellate processing. However,

a number of federal circuits, in this adoption, have

substantially veered from this Court’s Speedy Trial

precedents, by either making particularized

prejudice indispensible or deeming presumptive

prejudice harmless. The Court of Appeals for the

Armed Forces—the court that reviewed Captain

Ashby’s case—is one such court.

Whether the Court of Appeals for the Armed Forces

erred by deviating from this Court’s Speedy Trial

jurisprudence, and whether this departure from

precedent precluded Captain Ashby from receiving

relief for a founded Due Process violation?

Regardless of the misapplication of this Court’s

Speedy Trial jurisprudence, whether the Court of

Appeals for the Armed Forces still erred by

disregarding Appellant's employment prejudice in

determining whether the Government established

that the Due Process violation was harmless beyond

a reasonable doubt?

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TABLE OF CONTENTS

QUESTIONS PRESENTED. ............0...000:ssesssosessorseses ii

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CONSTITUTIONAL AND STATUTORY

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REASONS FOR GRANTING THE PETITION.......... 6

A right to speedy appellate processing, via the

Due Process clause, has been recognized by

nearly every federal circuit, without this

Court’s comment. The test established by this

Court regarding Speedy Trial violations has

uniformly been adopted as the test to

determine whether a Due Process violation

has occurred for dilatory appellate processing.

However, a number of federal circuits, in this

adoption, have substantially veered from this

Court’s Speedy Trial precedents, by either

making particularized prejudice indispensible

or deeming presumptive prejudice harmless.

Because this jurisprudential deviance is not

supported by this Court’s analogous Speedy

Trial precedents, and because this deviance

has prevented Captain Ashby from receiving

relief for this Due Process violation, review by

this Court is necessary.

Regardless of the misapplication of this Court’s

Speedy Trial framework, the Court of Appeals

for the Armed Forces still erred by disregarding

Appellant's employment prejudice in

determining whether the Government

established that the violation was harmless

beyond a reasonable doubt

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TABLE OF AUTHORITIES

Page

United States Supreme Court Cases

Barker v. Wingo, 407 U.S. 514

en ERE RS ae passim

Moore v. Arizona, 414 U.S. 25

CAS a Rs: 8,13 ,14

United States v.Doggett, 505 U.S. 647

STE AA 8, 11, 13-16

United States Circuit Court of Appeals Cases

Burkett v. Cunningham, 826 F.2d 1208

Cs Ei ietrectcsiesscosecenvcies 6, 9

Harris v. Champion (Harris ID, 15 F.3d 1538

| Se 6, 9

Heiser v. Ryan, 15 F.3d 299

CE Baa ccicssccccccscscccescce: 9

Montgomery v. Sheffield, 821 F.2d 821

RR, BP oeiccaseccrverenssncel 6, 9

Rheuark v. Shaw, 628 F.2d 297

fe ee 6, 9, 11

Simmons v. Reynolds, 898 F.2d 865

SB teicssisvessonessonceaaes 6, 9

United States v. Garcia, 444 F.3d 41

Ne i Si ecvscrecssrcevetosensseensee 9

United States v. Hawkins, 78 F.3d 348

INS WM arensesnssevecssscecees 6,9

United States v. Johnson, 732 F.2d 3'79

Le S| | 6,9

United States v. Kimmons, 917 F.2d 1011

(7th Cir. 1900)......0.:000..00.00000. 6, 9

United States v. Pratt, 645 F.2d 89

i. |) Sree 6, 9

United States v. Rodriguez, 259 Fed. Appx. 270

ee: 6, 9

United States v. Smith, 94 F.3d 204

Be Ca, BUDE)... cccccccccceccocccoces 6,9

United States v. Tucker, 8 F.3d 673

Ee GE, BIDE sic cccccccceccesscceces 6, 9

United States Court of Appeals for the Armed

Forces Cases

United States v. Bush, 68 M.J. 96

(C.A.A.F. 2009).............000 passim

United States v. Jones, 61 M.J. 80

(C.A.A.F. 2005)............. 18, 21, 22

United States v. Moreno, 63 M.J. 129

(C.AA.F. BOOG).........0000000. passim

United States v. Szymczyk, 64 M.J. 179

es SI cacnivvesessenessvesevene 18

Vil

United States v. Tardif, 57 M.J. 219

tt SRS — ee |

United States v. Toohey, 63 M.J. 353

3 8 8 4 ae 12

Statutes

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BF INS Scot caslailsd banecauunbiacenennnnscdodniieasacesapieniells 3

Other Authorities/Rules

RULE FOR COURTS-MARTIAL 1103(b)(3)(C),

MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2005 ed..)..........cccccccccssessecccccccccsscerers 19

RULE FOR COURTS-MARTIAL 11085,

MANUAL FOR COURTS-MARTIAL,

Ce I MN OE Dc cccccconccccccscccsssssscccnccecosecnsess 3

MARINE CORPS ORDER 1050.16A.................... pnionenicanns 4

PETITION FOR A WRIT OF CERTIORARI

Captain Richard J. Ashby, United States Marine

Corps, respectfully petitions for a writ of certiorari to

review the decision of the United States Court of

Appeals for the Armed Forces in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Armed Forces (CAAF) (App., infra, 1a-55a) is

reported at 68 M.J. 108. The second opinion of the

Navy and Marine Corps Court of Criminal Appeals

(NMCCA) is United States v. Ashby, No. 200000250,

unpublished op. (N.M.Ct.Crim.App. 17 June 2008).

App. B, infra at 56a-62a. The case had previously

been remanded by the NMCCA to the Convening

Authority for a new Staff Judge Advocate’s

Recommendation from a _ non-disqualified Staff

Judge Advocate. The principal appellate opinion by

the NMCCA is United States v. Ashby, No.

200000250, 2007 CCA LEXIS 235, unpublished op.

(N.M.Ct.Crim.App. 27 June 2007). App. C, infra, at

63a-165a.

JURISDICTION

The Court of Appeals for the Armed Forces

granted review of Petitioner's case and affirmed his

conviction on August 31, 2009. A timely petition

for reconsideration was denied on September 29,

2009. App. D, infra, 166a. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1259(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the Constitution is

reproduced in App. E, infra at167a.

STATEMENT

Captain Richard J. Ashby, United States Marine

Corps, was convicted at a general court-martial of

two specifications of conduct unbecoming an officer,

in violation of 10 USC § 933. He was sentenced on

May 10, 1999. The NMCCA docketed Captain

Ashby’s case on March 13, 2000. The NMCCA did

not issue its opinion until June 27, 2007—over eight

years after sentencing.

In its initial review of the case, the NMCCA, sua

sponte, commented on the dilatory appellate

processing of this case.! The NMCCA then

conducted a Barker v. Wingo analysis, and found

that a Due Process violation had occurred, despite

finding no particularized prejudice under the fourth

Barker factor.2, The NMCCA then conducted a

harmlessness’ review, and found that this

constitutional error was harmless beyond a

reasonable doubt.2 However, due to a remand for

another reason, the NMCCA stated “We will

reconsider the issue of harm to the appellant anew

upon return and subsequent review of the

appellant’s record to this court....". The NMCCA

! Appendix C at 159a.

2 Id. at 161a-163a.

3 Jd. at 163a.

4 Id.

also commented that it would “also, at that time,

consider whether it is appropriate in this case to

grant the appellant discretionary relief under our

Article 66(c), UCMJ, authority.”5

The NMCCA then returned the record of trial to

the Judge Advocate General for remand to an

appropriate convening authority, due to an issue

regarding the disqualification of the original Staff

Judge Advocate (SJA). The NMCCA gave the option

to the Convening Authority to either order a fact-

finding hearing pursuant to United States v. DuBay,

87 C.M.R. 411 (C.M.A. 1967), or order a new Staff

Judge Advocate’s Recommendation from a different,

nondisqualified SJA, and then prepare a new

Convening Authority’s action.®

The Convening Authority chose the latter option,

which entitled Captain Ashby to submit clemency

materials to the Convening Authority, pursuant to

10 USC § 860, before the Convening Authority

acted.? Captain Ashby submitted a substantial

5 Jd; The Court was referring to its power under 10 USC §

866, as interpreted by United States v. Tardif, 57 M.J. 219, 224

(C.A.A.F. 2002), where the CAAF found that, under the broad

authority of 10 USC § 866, the Service Courts of Criminal

Appeals are “required to determine what findings and sentence

‘should be approved,’ based on all the facts and circumstances

reflected in the record, including the unexplained and

unreasonable post-trial delay.”

6 Appendix C at 164a.

7 See 10 USC § 860(b)(1) (“The accused may submit to the

convening authority matters for consideration by the convening

authority with respect to the findings and the sentence.”); 10

USC § 860(b)(1) (“[S]uch action may be taken only after

consideration of any matters submitted by the accused under

subsection (b)...") ; See also RULE FOR COURTS*MARTIAL 1105,

MANUAL FOR COURTS:MARTIAL, UNITED STATES (2005 ed.).

clemency package, outlining the prejudice he felt as

a result of the dilatory appellate processing of his

case.® Captain Ashby detailed his psychological toll,

as well as personal and employment prejudice as a

result of his inability to travel outside the United

States.° This inability to travel is a result of Marine

Corps Order (MCO) 1050.16A, which precludes any

Marine, during the midst of his or her appeal, from

traveling outside of the United States. !°

Of particular note within those clemency

enclosures was a letter from a potential employer,

“DownRange G2 Solutions, Inc.,” which stated that

Captain Ashby’s background puts him in “demand

around the world,” that the only drawback the

employer could see is the inability to travel and the

difficulty obtaining a clearance, that “there are many

flying jobs once [his] current situation is resolved,”

and that the employer “will help [Captain Ashby]

move on as soon as [he is] free to travel” and “hopels!

[the employer] will have [him] onboard soon.”?!

Upon the second review by the NMCCA, Captain

Ashby argued that he should be afforded relief as a

result of the Due Process violation, as well as under

10 USC § 866.!2 Under the section of his brief

requesting relief under 10 USC § 866, Captain

Ashby, through counsel, specifically referenced his

§ Clemency Request of February 15, 2008.

® Clemency Request of February 15, 2008; enclosures 1-7.

10 MCO 1050.16A(16) “Space Available Travel/Foreign

Travel” (“Marines on appellate leave are...not authorized to

travel or reside outside the United States or its territories and

possessions while on appellate leave.”)

‘t Clemency Request of February 15, 2008; enclosure 6.

12 See Appellant's Brief and Assignment of Errors of April

28, 2009.

clemency petition and the enclosures therein: “The

clemency materials submitted on his behalf testify to

all of the missed opportunities, sleepless nights, and

other obstacles resulting from this Court’s

negligence. Clemency Petition of 15 Feb 2008,

Enclosures 1-7.”13 The NMCAA, in looking to the

Due Process violation, stated that, “having carefully

re-reviewed the record of trial and the appellant’s

pleadings, we find no such prejudice,” and therefore

ruled that the Due Process violation was, again,

harmless beyond a reasonable doubt. '4

Captain Ashby’s case was then reviewed by the

CAAF, including an assignment of error regarding

his Due Process right to speedy appellate processing.

The CAAF agreed with the NMCCA that Captain

Ashby’s Due Process rights were violated, but also

agreed that the violation was harmless beyond a

reasonable doubt.'5 In assessing the employment

prejudice, while conceding the inability to travel may

have been remedied by a speedy appeal, the CAAF

noted that, given the affirmation of the convictions, a

speedy appeal, “may or may not address” the

difficulty in obtaining a security clearance. '®

As a result of the CAAF’s decision that the error

was harmless beyond a reasonable doubt, Captain

Ashby received no remedy for this founded Due

Process violation for dilatory appellate processing.

eek

‘3 Appellant’s Brief and Assignment of Errors of April 28,

2009 at 15-16.

'¢ Appendix B at 61a.

'S Appendix A at 35a°38a.

‘6 Appendix A at 37a, n. 11.

By the time of the CAAF’s decision of August 31,

2009, more than ten years had elapsed in Captain

Ashby’s direct appeal since he was sentenced.

REASONS FOR GRANTING THE PETITION

A right to speedy appellate processing, via the Due

Process clause, has been recognized by nearly every

federal circuit, without this Court's comment. The

test established by this Court regarding Speedy

Trial violations has uniformly been adopted as the

test to determine whether a Due Process violation

has occurred for dilatory appellate processing.

However, a number of federal circuits, in this

adoption, have substantially veered from this

Court's Speedy Trial precedents, by either making

particularized prejudice indispensible or deeming

presumptive prejudice harmless. Because this

jurisprudential deviance is not supported by this

Court’s analogous Speedy Trial precedents, and

because this deviance has prevented Captain Ashby

from receiving relief for this Due Process violation,

review by this Court is necessary.

While this Court has never addressed the

constitutional right to speedy appellate process,

nearly every federal court has recognized that such a

right exists under the Due Process clause of the

Fifth Amendment to the United States

Constitution.!7 In determining whether a violation

\7 United States v. Pratt, 645 F.2d 89, 91 (ist Cir. 1991);

Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir. 1990); Burkett

v. Cunningham, 826 F.2d 1208, 1222 (3d Cir. 1987); United

States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.), cert. denied,

has occurred, the federal courts have logically

extended this Court’s Speedy Trial framework to

post-trial delay.

A. This Court’s Speedy Trial Jurisprudence

In Barker v. Wingo, this Court set forth a four-

part balancing test in order to determine whether a

delay in proceeding to trial has resulted in a Due

Process violation.18 That test looks to (1) the length

of the delay; (2) the reason for the delay; (3) whether

the defendant has asserted this right; and (4) the

prejudice to the defendant in performing this fact-

specific balancing test.!9 Furthermore, “[t}he length

of the delay is to some extent a _ triggering

mechanism. Until there is some delay which is

presumptively prejudicial, there is no necessity for

inquiry into the other factors that go into the

balance.”20 Therefore, every analysis under Barker

presumes some prejudice by virtue of the delay, even

469 U.S. 1033 (1984); Rheuark v. Shaw, 628 F.2d 297, 303 (5th

Cir. 1980), cert. denied, 450 U.S. 931 (1981); United States v.

Smith, 94 F.3d 204, 207 (6th Cir. 1996); United States v.

Kimmons, 917 F.2d 1011, 1014-15 (7th Cir. 1990); United

States v. Hawkins, 78 F.3d 348, 350-51 (8th Cir.), cert. denied,

519 U.S. 844 (1996); United States v. Tucker, 8 F.3d 673, 676

(9th Cir. 1993) (en banc), cert. denied, 510 U.S. 1182 (1994);

Harris v. Champion (Harris ID, 15 F.3d 1538, 1559 (10th Cir.

1994); United States v. Rodriguez, 259 Fed. Appx. 270, 277

(11th Cir. 2007); Montgomery v. Sheffield, 821 F.2d 821, 821

(D.C. Cir. 1987) (recognizing such a theory has been upheld

elsewhere); United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F.

2006).

18 407 U.S. 514, 530 (1972).

19 Jd

20 Jd.

without considering particularized trial prejudice.

This Court has consistently highlighted the

“balancing” nature of the test, one in which all the

factors are weighed: “We regard none of the four

factors identified above as either a necessary or

sufficient condition to the finding of a deprivation of

the right of speedy trial.”2!_ And again, in Moore v.

Arizona, where this Court specifically announced

that the fourth factor—prejudice—was not a sine

qua non for a constitutional] violation, this Court

stated: “Barker v. Wingo expressly rejected the

notion that an affirmative demonstration of

prejudice was necessary to prove a denial of the

constitutional right to a speedy trial.”22 And yet

again, in United States v.Doggett, this Court

explained that particularized prejudice under the

fourth Barker factor is not a requisite under this

Speedy Trial test because “excessive delay

presumptively compromises the reliability of a trial

in ways that neither party can prove or, for that

matter, identify.”23 Therefore, “[wlhile such

presumptive prejudice cannot alone carry a Sixth

Amendment claim without regard to the other

Barker criteria, it is part of the mix of relevant facts,

and its importance increases with the length of

delay.”24

In sum, this Court’s Speedy Trial analysis

requires a_ balanced, case-by-case approach,

triggered by a presumptively prejudicial delay.

Notably, it specifically does not require

21 Jd. at 533.

22 414 US. 25, 26 (1973) (per curiam).

23 505 U.S. 647, 655 (1992).

24 Id. (citation omitted).

particularized prejudice if the other factors,

including the presumptively prejudicial delay, weigh

in favor of the accused.

B. Deviation from the Speedy Trial Jurisprudence

within federal courts

As noted above, federal courts have uniformly

adopted this Court’s Speedy Trial jurisprudence to

analyze Due Process violations for dilatory appellate

processing.25 However, in this adoption, some courts

have impermissibly abandoned two substantive

principles marked by this Court’s Speedy Trial

jurisprudence: (1) particularized prejudice is not a

requisite to establish a constitutional violation; and

(2) delay, in and of itself, is a triggering mechanism

that establishes “presumptive prejudice.” Because

this Court has stated that these two principles are

essential facets of Speedy Trial jurisprudence,

federal courts are bound by this precedent, and

therefore may not deviate from this precedent

without sharp reproach from this Court. Similarly,

when incorporating this Court’s jurisprudence into

an analogous situation, such as speedy appellate

processing, deviation from the analogous precedent

is equally worthy of this Court’s review.

Federal courts are split as to whether an accused

is required to make a showing of particularized

prejudice to establish a Due Process violation for

dilatory appellate processing.26 And despite citing

25 See footnote 1.

26 Compare United States v. Garcia, 444 F.3d 41, 57 (1st Cir.

2006) (“defendant must show prejudice, and we will not

presume prejudice from the length of the delay”); Kimmons,

Barker, those courts that have found that such a

requirement exists have clearly retreated from the

holding of Barker that “none of the four factors [are]

a necessary or sufficient condition.”27 Thus, the fact-

specific, balancing test enunciated in Barker has

been discarded by those federal courts in favor of a

“prejudice plus” test—requiring particularized

prejudice to satisfy a Due Process violation, rather

than it serving as one of several factors to consider.

Coupled with these courts’ requirement of

particularized prejudice is a _ dismissal of

presumptive prejudice as affecting the Marker

analysis. These changes are substantial, as they

917 F.2d 1015 (7th Cir. 1990) (requiring particularized

prejudice under fourth Barker factor); Hawkins, 78 F.3d at 350-

51 (8th Cir. 1996) (stating Hawkins “must also show prejudice

from the delay to establish a due process violation.”); Tucker, 8

F.3d at 676 (9th Cir. 1993) (requiring finding of particularized

prejudice); Rodriguez, 259 Fed. Appx. 270, 278 (11th Cir. 2007)

(requiring particularized prejudice for due process violation),

with Simmons, 898 F.2d at 868 (2d Cir. 1990); (“In determining

whether a delay of a prisoner’s appeal violated due process, we

look to the Barker criteria, although no one factor is dispositive

and all are to be considered together with the relevant

circumstances.”); Heiser v. Ryan, 15 F.3d 299, 304 (3rd Cir.

1994) (recognizing that “a situation may arise where the court

may presume prejudice in a post-conviction delay context”);

Smith, 94 F.3d at 209 (6th Cir. 1996) (recognizing, in extreme

circumstances, the length of the delay may give rise to a strong

presumption of evidentiary prejudice); Harris IJ, 15 F.3d at

1559 (10th Cir. 1994) (recognizing that presumptive prejudice

may come into play in extreme circumstances, yet still stating

that, ordinarily, a petitioner must make some showing on the

fourth factor of Barker); Moreno, 63 M.J. at 136 (C.A.A.F. 2006)

(“No single factor is required for finding a due process violation

and the absence of a given factor will not prevent such a

finding”).

27 Barker, 407 U.S. at 533.

ignore the effect of the egregiousness of the other

Barker factors, and discount the fact that “excessive

delay presumptively compromises the reliability of a

trial in ways that neither party can prove or, for that

matter, identify.”28 Because the reliability of an

appeal suffers in the same way as a trial would, due

to delay, no distinction need be made that calls for a

different standard or approach.29 As such, the

federal courts that have required particularized

prejudice and ignored presumptive prejudice have

overstepped their bounds, and flouted this Court’s

analogous precedent.

While the pertinent cases used in determining

Captain Ashby’s case may not be implicated by these

federal courts’ deviation, a similar deviation has

occurred in military jurisprudence. Therefore, an

underlying concern is that this area of law is

developing divergent paths, without guidance from

this Court. Furthermore, these divergent paths

seemingly conflict with the Speedy Trial framework

established by this Court, which has been adopted as

the sole model for determining a violation of dilatory

appellate processing. Lest these paths become more

divergent and less tied to this Court’s Speedy Trial

framework, Captain Ashby respectfully requests

review by this Court.

28 Doggett, 505 U.S. at 655.

22 Rheuark, 628 F.2d at 303-04 (“[T]he reasons for

constraining appellate delay are analogous to the motives

underpinning the Sixth Amendment right to a speedy trial.”)

C. Deviation from the Speedy Trial Jurisprudence

within the military

The CAAF has similarly incorporated Barker as

the appropriate analysis for a violation of dilatory

appellate processing under the Due Process clause of

the United States Constitution.°° The military

courts have continued to employ the Sarker

balancing test, and have seemingly cast aside the

notion that particularized prejudice is a prerequisite

to finding a Due Process violation.*! However,

though particularized prejudice is not required to

establish a Due Process violation, it nevertheless is

required to establish that this Due Process violation

is not harmless beyond a reasonable doubt. Every

constitutional violation is reviewed for harm.32 And

in order to find harm, the CAAF has continued to

require particularized prejudice.*° Therefore,

30 Moreno, 63 M.J. at 135.

31 Jd. at 136 (“No single factor is required for finding a due

process violation and the absence of a given factor will not

prevent such a finding.”)

* United States v. Bush, 68 M.J. 96, 102 (C.A.A.F. 2009).

33 Jd. at 104 (“Under the totality of circumstances in this

record, we are confident that the due process violation was

harmless beyond a reasonable doubt. To find otherwise would

essentially adopt a presumption of prejudice in cases where the

appellate court has found a due process violation as a result of

unreasonable post-trial delay in the absence of MSarker

prejudice. We have declined to adopt such a standard in the

past and see no need to alter that position.”); But see United

States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006) (finding harm

without Barker prejudice, yet stating “we do not presume

prejudice based on the length of the delay alone.”) To whatever

extent Toohey does not require particularized prejudice, the

application of this precedent to other cases is difficult, without

a more detailed discussion of how “harm” was established

particularized prejudice is still a de facto

requirement to receive a remedy under this type of

Due Process violation. Explicit within that notion is

the CAAF’s refusal to recognize presumptive

prejudice, as harm, in conducting its harmlessness

review. 4

The CAAF’s framework is flawed because it still

requires particularized prejudice and _ ignores

presumptive prejudice, despite this Court’s Speedy

Trial jurisprudence. As stated in Moore, “Barker v.

Wingo expressly rejected the notion that an

affirmative demonstration of prejudice was

necessary to prove a denial of the constitutional

right to a speedy trial.”°5 And as noted in Doggett,

“(wlhile such presumptive prejudice cannot alone

carry a Sixth Amendment claim without regard to

the other Barker criteria, it is part of the mix of

relevant facts, and its importance increases with the

length of delay.”36 Despite the clear precedent of

Barker and its progeny that presumptive prejudice

can and should be considered, the CAAF refuses to

follow those precedents: “We believe that adopting

the Doggett presumption of prejudice is unnecessary

at this point.”°

In dismissing this Court’s analogous precedents,

the CAAF fails to understand the rationale for not

requiring particularized prejudice, as well as the

rationale for accepting presumptive prejudice.

without any particularized Barker prejudice.

«4 Id.

3% 414US. at 26.

36 505 U.S. at 655 (citation omitted).

37 Moreno, 63 M.J. at 142; see also Bush, 63 M.J. at 104

(“We have declined to adopt [the Doggeté| standard in the past

and see no need to alter that position.)

“[Elxcessive delay presumptively compromises the

reliability of a trial in ways that neither party can

prove or, for that matter, identify.”°5 Therefore,

particularized prejudice will not always be readily

apparent. Furthermore,

[Plrejudice to a defendant caused by

delay in bringing him to trial is not

confined to the possible prejudice to his

defense in those proceedings. Inordinate

delay, ‘wholly aside from possible

prejudice to a defense on the merits, may

‘seriously interfere with the defendant's

liberty, whether he is free on bail or not,

and ... may disrupt his employment,

drain his financial resources, curtail his

associations, subject him to _ public

obloquy, and create anxiety in him, his

family and his friends.’ United States v.

Marion, 404 U.S. 307, 320 (1971). These

factors are more serious for some than for

others, but they are inevitably present in

every case to some extent, for every

defendant will either be incarcerated

pending trial or on bail subject to

substantial restrictions on his liberty.’

Barker v. Wingo, supra, at 537 (WHITE,

J., concurring).%9

These intangibles, including the very access to a

court for one’s right to appellate process, must be

considered in determining prejudice, or harm.

38 Doggett, 505 U.S. at 655.

%9 Moore, 414 U.S. at 26.

Again, these same interests and factors are as

applicable to persons awaiting appeals as they are

for a persons awaiting trial. As such, it is error for

the CAAF to discount presumptive prejudice as

prejudicial harm within the harmlessness review.

Because the CAAF has refused to apply Doggett to

dilatory appellate processing cases, presumptive

prejudice will always be ignored, and particularized

prejudice will always be required.

D. Application to Captain Ashby’s case

In Captain Ashby’s case, the CAAF conducted a

Barker analysis, and found, similar to the NMCCA,

that a Due Process violation occurred:

Despite the fact that Ashby has not

established prejudice under the Barker

atialysis, in balancing and weighing the

four factors, we agree with the lower

court that the delay violated Ashby’s

due process rights to a speedy post-trial

review and appeal.*°

The CAAF showed some fidelity toward Barker, and

its balancing nature, by finding a violation without a

finding of particularized prejudice. However, the

CAAF then conducted a harmlessness review and

found that, despite Captain Ashby’s rights being

violated by a ten-year delay in his appeal, this

violation was harmless beyond a reasonable doubt.

The CAAF erred in discounting the theory of

presumptive prejudice in conducting their

*° Appendix A at 37a-38a.

harmlessness review. As this Court has noted, “[t]he

length of the delay is to some extent a triggering

mechanism. Until there is some delay which is

presumptively prejudicial, there is no necessity for

inquiry into the other factors that go into the

balance.”4! This affirmatively recognizes that, even

before the Barker balancing test is necessary, the

delay must have some presumptive harm. And,

“[w]hile such presumptive prejudice cannot alone

carry a Sixth Amendment claim without regard to

the other Barker criteria, it is part of the mix of

relevant facts, and its importance increases with the

length of delay.”4 By failing to apply this

presumptive prejudice in conducting’ the

harmlessness analysis, the effect of which is

increased by the ten-plus years of direct appeal, the

CAAF has affirmatively abandoned this Court’s

holding that harm can be found without a showing of

particularized prejudice.*?

Therefore, this case should be remanded to the

lower court with direction that presumptive

prejudice need be considered when conducting a

harmlessness analysis.

4! Barker, 407 U.S. at 530.

«2 Doggett, 505 U.S. at 655 (citation omitted).

*3 Moreno, 63 M.J at 142; see also Bush, 63 M.J. at 104 (“We

have declined to adopt [the Doggeté] standard in the past and

see no need to alter that position.)

Regardless of the misapplication of this Court’s

Speedy Trial framework, the Court of Appeals for

the Armed Forces still erred by disregarding

Appellant's employment prejudice in determining

whether the Government established that the

violation was harmless beyond a reasonable doubt.

As noted above, the CAAF found that Captain

Ashby’s rights were violated, but found that such a

violation was harmless beyond a reasonable doubt.

Captain Ashby argues that such a finding is

impossible in his case, given the particularized

prejudice that he presented to both the CAAF and

the NMCCA.

Normally, when a Due Process violation has

occurred for’ dilatory appellate processing,

particularized prejudice will also be shown as part of

the Barker analysis, thereby making harm in the

harmlessness review apparent.44 The standard

Barker prejudice required for dilatory appellate

processing cases is set forth in United States v.

Moreno: (1) oppressive incarceration pending appeal;

(2) anxiety and concern of those convicted awaiting

the outcome of their appeals; and (3) the possibility

that a convicted person's grounds for appeal, and his

or her defenses in case of reversal and retrial, might

“ Bush, 68 MJ. at 104 (“In circumstances where a record

establishes that an appellant has suffered Barker prejudice,

the Government's burden to establish that the constitutional

violation was harmless beyond a reasonable doubt may be

difficult to attain. The corollary seems apparent. In those cases

where the record doesnot reflect Barker prejudice, as a

practical matter, the burden to establish harmlessness may be

more easily attained by the Government.”)

be impaired.* However, the CAAF has also

recognized that “post-trial delays do not necessarily

impact directly the findings or sentence.”“6

Therefore, the CAAF also “reviewls] the record de

novo to determine whether other prejudicial impact

is present from the delay.”*7 As a result, the CAAF

has expanded the scope of “harm,” having found

prejudicial impact, due to appellate delay, in the

nature of time spent having to be registered as sex

offender,*® and for employment prejudice.‘

Captain Ashby demonstrated employment

prejudice, yet the CAAF failed to recognize this

prejudice, in either the Barker analysis (which does

not matter because a violation was found even

without this prejudice), or the harmlessness review.

This was error, as Captain Ashby evidenced

particularized employment prejudice that would

have prevented the CAAF from concluding, beyond a

reasonable doubt, that he was not harmed.

In ignoring this employment prejudice, the CAAF

states: “Nor do we fault the Court of Criminal)

Appeals for failing to address Ashby’s employment

prejudice argument, which was based upon clemency

materials submitted to the convening authority but

was not argued before that court.” The

disregarding of this prejudice is faulty for two

reasons: (1) contrary to the CAAF’s statement, this

prejudice was in front of the NMCCA, was

* Moreno, 63 M.J. at 138-39.

* Bush, 68 M.J. at 102

“7 Id

* United States v. Szymcayk, 64 M.J. 179, 179 (C.AA.F.

2006).

* United States v. Jones, 61 M.J. 80, 84°85 (C.A.A.F. 2005).

* Appendix A at 35a.

referenced by Captain Ashby’s pleadings, and was

required to be examined by NMCCA’s own mandate;

and (2) the CAAF has de novo review of the harmless

beyond a reasonable doubt analysis, where it

“considerls] the totality of the circumstances in

assessing whether the Due Process violation is

harmless beyond a reasonable doubt.”®! Therefore,

it does not matter what NMCCA did, because the

CAAF reviews it anew, just as this Court can review

the CAAF’s decision anew on the same issue.

The CAAF’s dismissal of these allegations of

prejudice, based upon a failure to argue them to the

NMCCA, was in error. The CAAF alleges that

“Ashby did not claim prejudice arising from lost

employment opportunities before the lower court.”®?

This is simply not the case. First, these letters were

part of the record,®® and as part of the NMCCA’s

duty under 10 U.S.C. § 866, the NMCCA must

review and analyze the “entire record.”*4 Therefore,

the allegations of prejudice should have been

apparent from the reading of the entire record,

without argument. Second, the CAAF has

specifically instructed the NMCCA that, under 10

U.S.C. § 866, it has discretion to address and correct

dilatory appellate processing violations as part of its

statutory mandate, above and beyond the

constitutional Due Process analysis.®* In so doing,

5! Appendix A at 38a.

52 Jd. at 37a, n. 11.

5) RULE FOR COURTS-MARTIAL 1103(b)(3)(C), MANUAL FOR

COURTS-MARTIAL, UNITED STATES (2005 ed.) (Clemency

materials are matters attached to the record.)

% See 10 USC § 866(c).

58 See Tardif, 57 MJ. at 224 (finding, under the broad

authority of 10 USC § 866, that a court is “required to

the CAAF has made it encumbent upon NMCCA to

assess the appropriateness of a sentence based upon

appellate delay. Third, in the NMCCA’s first

decision in this case, it instructed itself that it

should address this dilatory appellate processing

issue upon return from remand: “We will reconsider

the issue of harm to the appellant anew upon return

and subsequent review of the appellant’s record to

this court.”56 Therefore, beyond the 10 USC § 866

mandate, the NMCCA’s own internal mandate

required them to assess the whole record for harm

resulting from this Due Process violation. And

lastly, and most contrary to the CAAF’s statement,

Captain Ashby even referenced that employment

letter, and other clemency materials in asking for

relief for dilatory appellate processing in this case.*’

So, the CAAF’s excusal of the NMCCA failure to

address this prejudicial allegation is inexcusable.

Even more inexcusable is the CAAF’s own failure

to address this prejudice as part of its de novo

harmlessness review. The CAAF does concede that

this allegation of prejudice was raised before them:

“In his brief before this Court and during oral

determine what findings and sentence ‘should be approved,’

based on all the facts and circumstances reflected in the record,

including the unexplained and unreasonable post-trial delay.”)

56 Appendix C at 163a.

57 Appellant's Brief and Assignments of Error, dated April

28, 2008, pages 15-16 (In a request for relief for dilatory

appellate processing under 10 USC § 866, the Petitioner,

through counsel, states “The clemency materials submitted on

his behalf testify to all of the missed opportunities, sleepless

nights, and other obstacles resulting from this Court’s

negligence. Clemency Petition of 15 Feb 2008, Enclosures 1-

7.”)

argument, Ashby called our attention to a letter from

a potential employer, dated December 17, 2005,

which he submitted with his clemency materials

when the case was before the convening authority a

second time.”58 And the CAAF, in this footnote,

provides its analysis of this prejudice:

The letter does not specifically state

that the company would have hired

Ashby if he had a DD 214. It does,

however, note that Ashby was unable to

travel and would “find it difficult to

obtain a government security

clearance.” Obtaining a DD 214 would

alleviate Ashby’s inability to travel but,

as we have affirmed the Article 133,

UCMJ, convictions, may or may not

address the difficulty he may have in

obtaining a security clearance. Under

the circumstances of this case, this

letter does not establish specific

prejudice under United States v. Jones,

61 M.J. 80, 85 (C.A.A.F. 2005).59

This analysis does no justice to the stated letter.

Contrary to the CAAF’s rendering above, the letter

from the potential employer certainiy implies that he

would be hired, but for his inability to travel and the

question of a security clearance. The letter states (1)

that Captain Ashby’s background puts him in

58 Appendix A at 37a, n. 11; The significance of the DD-214

is that signifies the end of an appeal, when a person is finally

given their discharge.

59 Td.

“demand around the world;” (2) that the only

drawbacks for him are the travel and clearance

issues; (3) that “there are many flying jobs once [his]

current situation is resolved;” and (4) most

importantly, the letter states “we will help you move

on as soon as you are free to travel...I hope we will

have you onboard soon.”6° All these statements, in

the context of the letter, indicate that he will be

hired as soon as his case is finalized and his travel

restriction lifted. In fact, the CAAF concedes that

the travel issue would have been resolved by speedy

appellate review. The lone issue, therefore, for the

CAAF, is the security clearance, saying speedy

appellate processing “may or may not address the

difficulty he may have in obtaining a_ security

clearance.”6!

This statement is the undoing for the CAAF’s

finding of harmlessness. Having already recognized

that employment prejudice is a cognizable harm,®

the CAAF, after finding a Due Process violation,

must provide relief, “[ulniess [the CAAF] concludes]

beyond a reasonable doubt that the delay generated

no prejudicial impact...."65 “Beyond a reasonable

doubt” is a substantial burden. And the CAAF’s

finding that the appellate delay, “may or may not”

have affected his security clearance, and therefore

the lone impediment to his employment, certainly is

language that rebuts any governmental argument

that the Due Process violation was harmless beyond

60 Clemency Request of February 15, 2008, enclosure 6,

dated December 17, 2005.

61 Appendix A at 37a, n. 11.

62 Jones, 61 M.J. at 84-85.

63 Bush, 68 M.J. at 102.

a reasonable doubt. If the clearance issue “may” (as

opposed to “may not”) be resolved by issuance of a

DD-214—meaning the end of one’s appeal—then the

CAAF cannot be certain, beyond a reasonable doubt,

that that there was no harm. By its own language,

the CAAF states that it does have a reasonable

doubt whether the violation was harmless.

Because actual, particularized prejudice was

elicited and argued, the CAAF erred by finding that

the Due Process violation was harmless beyond a

reasonable doubt. Harm being present, Captain

Ashby has been prejudiced by the CAAF’s failure to

remedy his Due Process violation. Wherefore,

Captain Ashby requests this Court remand his case

to the CAAF for a determination of an appropriate

remedy.

CONCLUSION

Because the law regarding speedy appellate

processing is evolving in different directions within

the federal courts, and in a different direction from

the only analogous precedent from this Court,

review is necessary to establish a_ uniform

framework to analyze Due Process violations

resulting from dilatory appellate processing.

Furthermore, because the CAAF ignored

palpable prejudice in conducting a harmlessness

review, its decision must be overturned.

For these reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

DILLON J. AMBROSE

Lieutenant,

JAGC, USN

Counsel of Record

1254 Charles Morris St SE

Bldg 58, Suite 100

Washington, D.C. 20374

(202)-685-7390

Kathleen L. Kadlec

Lieutenant,

JAGC, USN

Counsel

1254 Charles Morris St SE

Bldg 58, Suite100

Washington, D.C. 20374

(202)-685-5398

APPENDIX A

UNITED STATES, Appellee

Richard J. ASHBY, Captain

U.S. Marine Corps, Appellant

No. 08-0770

Crim. App. No. 200000250

United States Court of Appeals for the Armed Forces

Argued June 24, 2009

Decided August 31, 2009

ERDMANN, J., delivered the opinion of the court, in

which GOODWIN, J., and COX, and GIERKE, S.JJ.,

joined. STUCKY, J., filed a separate concurring

opinion. EFFRON, C.J., and BAKER and RYAN, Ju.,

did not participate.

Counsel:

For Appellant: Lieutenant Dillon J. Ambrose, JAGC,

USN (argued); Lieutenant Kathleen L. Kadlec,

JAGC, USN (on brief).

For Appellee: Lieutenant Commander Paul D.

Bunge, JAGC, USN (argued); Colonel Louis J. Puleo,

USMC, and Brian K. Keller, Esq. (vn brief).

Military Judge: A. W. Keller

Judge ERDMANN delivered the opinion of the

court. !

Appellant, Captain (Capt.) Richard J. Ashby,

United States Marine Corps Reserve, was the pilot

of an EA-6B Prowler aircraft conducting a training

mission in the Italian Alps on February 3, 1998. The

Prowler’s crew consisted of Ashby, Capt. Joseph P.

Schweitzer, who was the navigator for this mission

and Ashby’s co-accused, and two _ additional

electronic countermeasures officers. Late in the

mission the aircraft was flying at low levels and

struck weight-bearing cables of the Aple Cermis

cable car system. As a result, a descending cable car

carrying twenty individuals from various nations fell

over 300 feet to the ground. Ail twenty passengers in

the cable car were killed. Despite the damages that

were inflicted upon the aircraft, Ashby piloted it to a

successful emergency landing at the North Atlantic

Treaty Organization (NATO) air base in Aviano,

Italy.

Ashby ultimately faced two general courts-

martial. At the first court-martial he was acquitted

by members of all charged offenses including

1 Chief Judge Andrew S. Effron, Judge James E. Baker,

and Judge Margaret A. Ryan recused themselves from this

case and did not participate in this opinion. Judge Joseph R.

Goodwin, Chief Judge of the United States District Court for

the Southern District of West Virginia, sat by designation,

pursuant to Article 142(), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 942(f) (2006). Senior Judge Walter T.

Cox III, and Senior Judge H. F. “Sparky” Gierke participated

in this case pursuant to Article 142(e)(i)(A)Gii), UCMJ, 10

U.S.C. §942(e)(1)(A)Gii) (2006).

dereliction of duty, negligently suffering

military property to be damaged, recklessly

damaging nonmilitary property, involuntary

manslaughter, and negligent homicide. After the

original charges had been referred, but before trial,

it was discovered that a videotape taken during the

flight had been concealed and eventually destroyed.

A separate charge alleging two violations of Article

133, UCMJ, 10 U.S.C. § 933 (2000), conduct

unbecoming an officer and a gentleman, was

preferred. The convening authority directed that the

Article 133, UCMJ, charge be tried in conjunction

with the original charge. At his initial trial, however,

Ashby refused to consent to the joinder of the Article

133, UCMJ, charge and it was withdrawn by the

convening authority. The Article 133, UCMJ, charge

was subsequently referred to a separate court-

martial.

At his second court-martial Ashby was convicted

by members of two specifications of conduct

unbecoming an officer and a gentleman in violation

of Article 133, UCM, for obstruction of justice and

conspiring to obstruct justice. He was sentenced to

six months of confinemey\t, forfeiture of all pay and

allowances, and dismissal from the service. The

convening authority approved the sentence and,

after remand? and a new staff judge advocate (SJA)

recommendation and action, the United States

Navy-Marine Corps Court of Criminal Appeals

affirmed the findings and sentence. United States v.

Ashby, No. NMCCA 200000250, slip op. at 4, (N-M.

Ct. Crim. App. June 17, 2008) (per curiam). We

2 United States v. Ashby, No. NMCCA 200000250, 2007

CCA LEXIS 235, 2007 WL 1893626 (N-M. Ct. Crim. App.

June 27, 2007).

granted review of all nine issues submitted by

Ashby to this court. Following a careful review of the

asserted issues, we affirm the Court of Criminal

Appeals.

UND

The circumstances underlying the two Article

133, UCMJ, offenses commenced after Ashby had

successfully made the emergency landing at the

NATO airbase in Aviano, Italy. The pertinent facts

were summarized as follows by the Court of

Criminal Appeals in its first opinion in this case:

The evidence at trial was iargely

undisputed as to what took place

immediately before and after this

tragic aviation disaster. Capt

Schweitzer borrowed the appellant’s

video camera for the mishap flight. It

was to be his last flying mission prior

to leaving active duty, and he desired

to have a remembrance that would

document for friends and family what

he did as a naval flight officer. Record

at 928; 1272-74. As Capt Schweitzer

explained:

I asked [Capt Ashby] over the

weekend if I could borrow [the video

camera). Basically I wanted to take

some low level -- not low level, but

footage of basically how we were

flying. It was the last week we were

going to be there. I was getting out in

June, and I wanted to have something

to have so I could show my friends,

my kids, and say, hey, this is what

your dad did....

Id. at 928. Before the flight, Capt

Schweitzer purchased a pack of two

blank tapes. With the appellant’s

assistance, he loaded one of the tapes

during the flight and shot video

footage during three separate legs of

their six-legged mission. Record at

931-32. Capt Schweitzer claimed at

trial that the camera was not in use at

the time of the mishap, which

occurred on the last leg of the mission.

Id. at 932, 980.

After the cable strike, the crew was

well aware that their aircraft was

seriously damaged and that, under the

best circumstances, an emergency

landing at the NATO air base in

Aviano would be required. They also

feared they might have to eject from

the aircraft. After successfully

executing an arrested landing at the

Aviano air base, the two. aft

crewmembers immediately executed

an emergency egress from the aircraft

in accordance with standard mishap

protocol. Before exiting the aircraft,

Capt Raney, who was in the aft

cockpit, overheard someone _ he

believed was the appellant asking “Is

it blank?” Id. at 1173; 1287-88. The

appellant and Capt Schweitzer, did

not egress the aircraft, but

instead elected to remain in the

forward cockpit discussing what to do

with the

recorded videotape.

Knowing that their aircraft would be

immediately impounded an

inventoried due to the mishap, and

seeking not to have the recorded

videotape “become an issue” during

the investigation they knew was

forthcoming, Capt Schweitzer

ultimately told the appellant, “Let’s

take the tape.” Record at 935, 1293,

1296; Prosecution Exhibit 2 at 1.

Though both were uncertain of

everything depicted on the videotape,

Capt Schweitzer was aware that the

tape, at a minimum, showed the

mishap aircraft executing a flaperon

roll [n5] during a ridgeline crossing on

the first leg of the flight, and, in a

separate segment, contained a scene of

him smiling into the video camera

while holding it in the air and pointing

it back at himself. Record at 938, 939.

Capt Schweitzer handed _ the

appellant the video camera, and the

appellant removed the recorded tape

and substituted in its place a new and

unused tape. Id. at 935, 1294; PE 2 at

1-2. The appellant then placed the

recorded tape in his flight suit pocket

and exited the aircraft, leaving behind

the video camera loaded with the

unrecorded tape, along with the

camera’s carrying bag. Record at 936,

1294; PE 2 at 2. The _ recorded

videotape remained in the appellant’s

possession during the next few days (4

to 6 February 1998), during which he

and the other crewmembers learned

that 20 people had died as a result of

their flight mishap, that the Italian

government had initiated a criminal

investigation into the matter, that

Italian and military defense counsel

had been hired/detailed to represent

the crewmembers, and _ that a

“Command Investigation Board” (CIB)

[n6] had been convened by the Marine

Corps to look into the facts and

circumstances concerning their flight.

[FOOTNOTES]

InJ5 A flaperon roll is a 360-degree

twisting maneuver about the long axis

of the aircraft, often performed during

ridgeline crossings.

[n]6 A CIB is one of several authorized

methods specified in the Manual of the

Judge Advocate General for

investigating significant operational

or training mishaps that involve loss

of life and/or significant property

damage. See § 0208, Manual of the

Judge Advocate General (JAGMAN),

JAG Instruction 5800.7D (15 March

2004). At the time of this incident, the

CIB procedures and guidance

were contained in § 0209 of the

JAGMAN, JAG Instruction 5800.7C

(03 October 1990).

[ J

Three to four days after the mishap

(on or about 07 February 1998) the

appellant was walking from the mess

hall with Capt Schweitzer and Capt

Seagraves. When Capt Schweitzer

described the recorded videotape to

Capt Seagraves and asked his opinion

as to what they should do with it,

Seagraves responded, “I would get rid

of it” or words to that effect. Record at

937. This statement was made in the

appellant’s presence. Later, fully

aware that the videotape contained

footage of his inverted ridgeline

crossing and other segments of the

mishap flight, and worried that such

would be “misinterpreted” by

investigators, the appellant gave the

videotape to Capt Schweitzer, who

subsequently destroyed it by throwing

it into a bonfire. Id. at 938-40, 950,

1299. The appeliant was advised of the

tape’s destruction by Capt Schweitzer

shortly thereafter. Id. at 950. The

existence and destruction of this

videotape only came to the attention of

military investigators in August 1998,

once Capt Seagraves received

testimonial immunity and

elected to disclose “the truth about

everything.” Id.

Ashby, 2007 CCA LEXIS 235, at *9-*13, 2007 WL

1893626, at *2-*3 (footnote omitted).

The circumstances surrounding the removal,

concealment an eventual destruction of the

videotape resulted in two specifications alleging

conduct unbecoming an officer and a gentleman

under Article 133, UCMJ. The first specification

alleged that Ashby engaged in conduct unbecoming

an officer and a gentleman by wrongfully conspiring

with Schweitzer to obstruct justice by endeavoring to

impede an investigation. The second specification

alleged that Ashby engaged in conduct unbecoming

an officer and aé_ gentleman by wrongfully

endeavoring to impede an investigation by secreting

and/or destroying evidence. Additional facts will be

set forth in our discussion of the individual issues as

necessary.

DISCUSSION

WHETHER THE LOWER COURT

ERRED IN HOLDING THAT THE

EVIDENCE WAS LEGALLY

SUFFICIENT TO SUPPORT A

CONVICTION UNDER ARTICLE

133, UNIFORM CODE OF MILITARY

JUSTICE (UCM), FOR

OBSTRUCTION OF JUSTICE OR

10a

CONSPIRACY TO OBSTRUCT

JUSTICE.

In reviewing for the legal sufficiency of evidence,

we take the facts in the light most favorable to the

Government and ask whether those facts would

permit a reasonable factfinder to find all the

elements of the charged offenses beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); United States v. Turner, 25 M.J. 324,

324-25 (C.M.A. 1987). We review questions of legal

sufficiency de novo. United States v. Chatfield, 67

M.J. 432, 441 (C.A.A.F. 2009).

The Court of Criminal Appeals determined that

the direct and circumstantial evidence supported

findings that (1) Ashby had reason to believe that

there was or would be a criminal investigation or

proceeding following the mishap, and (2) Ashby

acted with the specific intent to obstruct the due

administration of justice.

3 In support of these conclusions the lower court noted the

following: (1) Ashby’s statements to the Supervisor of Flight

at Aviano Air Base indicated that Ashby was aware of what

he had hit, where he had hit it, and that serious concerns

would be raised regarding the manner in which the flight was

conducted; (2) Ashby and Schweitzer remained in the cockpit

immediately after landing to discuss the contents of the

videotape and what to do with it, while their fellow

crewmembers immediately exited the aircraft pursuant to

protocol; (3) Ashby and Schweitzer substituted a blank tape

in the camera, left the camera in the aircraft, and took the

recorded tape with them: (4) Ashby testified during his first

court-martial that the reason they replaced the recorded tape

with a blank one was because they knew that they would be

subject to an AMB [Aircraft Mishap Board] and would have to

answer some questions; (5) Ashby learned on February 4,

lla

Before this court Ashby argues that the elements

of obstruction of justice were not met by the evidence

presented by the Government. Specifically, he

asserts that a criminal proceeding was not

reasonably foreseeable when he removed the

videotape from the aircraft, and at worst, he

subjectively believed that an administrative

investigation might occur. Ashby also contends that

there was insufficient evidence that he formed the

specific intent to impede a criminal proceeding. He

further argues that the evidence did not sufficiently

establish an agreement between himself and

Schweitzer to obstruct justice, where he “merely

acceded to authority when he relinquished the

videotape,” and did not believe that the tape would

be evidence in a criminal proceeding.

The Government responds that given the nature

of the mishap and the actions of the two

coconspirators during the charged time period, there

was sufficient evidence supporting both of Ashby’s

convictions. The Government urges that it is

1998, that he was under investigation by the Italian

authorities and realized at that time that some other

investigation may be initiated; (6) Schweitzer lacked candor

with his squadron commander regarding whether the video

camera had been used during the mishap flight: (7)

Schweitzer’s testimony established that Ashby, with full

knowledge of the ongoing Italian and CIB investigations

(which could result in the preferral of criminal charges),

heard and acceded to the recommendation of Capt. Seagraves

to get rid of the videotape; and (8) Schweitzer testified that

Ashby gave him the tape to “get rid of it,” Ashby was in

agreement with him to destroy the tape, and he destroyed the

tape with the specific intent to impede the Italian

investigation. Ashby, 2007 CCA LEXIS 235, at *22-*32, 2007

WL 1893626, at *6-*10.

12a

unrealistic to believe Ashby was unaware

that a criminal investigation would be forthcoming

at the time of his misconduct.

In analyzing this issue, we consider the elements

of Article 133, UCMJ, conduct unbecoming an officer

and a gentleman, as well as the elements of the

underlying offenses, Article 134, UCMJ, 10 U.S.C. §

934 (2000), obstruction of justice and Article 81,

UCMJ, 10 U.S.C. § 881 (2000), conspiracy. We

recently reaffirmed that the criminal conduct sought

to be punished by an Article 133, UCM4J, offense is

the act of committing dishonorable or compromising

conduct, regardless of whether the underlying

conduct constitutes an offense under the UCMJ.

United States v. Conliffe, 67 M.J. 127, 132 (C.A.A.F.

2009) (quoting United States v. Giordano, 15 C.M.A.

163, 168, 35 C.M.R. 135, 140 (1964)). Here, however,

the Government chose to charge the Article 133,

UCMd, offense of conduct unbecoming an officer and

a gentleman by incorporating the separate offenses

of obstruction of justice and conspiracy, and the

military judge instructed the panel on the elements

of all three offenses. Where the Government chooses

to incorporate separate offenses into the Article 133,

UCMJ, charge and where the military judge has

instructed on the elements of those offenses, we will

analyze the legal sufficiency of the Article 133,

UCMJ, offense by determining whether there was

legally sufficient evidence supporting all of the

elements instructed upon by the military judge.

The elements of Article 133, UCMJ, are: (1) the

accused did or omitted to do certain acts; and (2)

under the circumstances, these acts or omissions

constituted conduct unbecoming an officer and

13a

gentleman. Manual for Courts-Martial, United

States pt. IV, para. 59.b (2008 ed.) (MCM).

The elements of obstruction of justice are: (1) the

accused wrongfully did a certain act; (2) he did so in

the case of a person against whom he had reason to

believe that there was or would be criminal

proceedings pending; (3) he did so with the intent to

obstruct the administration of justice; and (4) under

the circumstances, the accused’s conduct was

prejudicial to good order and discipline in the armed

forces or was service discrediting. MCM pt. IV, para.

96.b.

The elements of conspiracy to obstruct justice

are: (1) the accused entered into an agreement with

another person to obstruct justice; and (2) while the

agreement continued to exist, and while the accused

remained a party to the agreement, the accused or

his coconspirator performed an overt act for the

purpose of bringing about the object of the

conspiracy. MCM pt. IV, para. 5.b.

It is important to note that the time period of the

two charged specifications was not limited to

February 3, 1998, the date of the incident, but rather

extended from that date through March 14, 1998,

well after the date of the tape’s destruction.

Therefore our review of the evidence as to Ashby’s

subjective belief regarding a possible criminal

investigation is not limited to the date of the

incident. We find that the evidence is clearly

sufficient to support Ashby’s convictions.

Evidence which supports a finding that Ashby

had reason to believe that there would be a criminal

proceeding pending against him when he removed

the tape from the aircraft includes: (1) testimony

that the plane was badly damaged and required an

14a

emergency landing after striking something; (2)

Ashby’s statements during a telephone conversation

shortly after the incident indicating that he believed

that they may have struck a tower cable that went to

a gondola and that they would get “drilled really

hard” for it; (3) testimony that Ashby and Schweitzer

not only took the recorded tape with the intent to

watch it before handing it over to the authorities,

but replaced it with a blank tape; (4) Schweitzer’s

admission that he acted with an intent to deceive

when he left the camera containing a blank tape in

the plane; and (5) Ashby’s admission ‘hat it was

wrong to take the videotape and that he did so

because he wanted to view it before anyone else

viewed it and could “nitpick” it.

There is additional evidence from the period of

time that commenced when Ashby secreted the tape

in his quarters until the time that Schweitzer

destroyed the tape that supports a finding that

Ashby had reason to believe that there was or would

be criminal proceedings against him.4 This includes

evidence that: (1) on February 3, 1998, shortly after

the incident, Ashby and Schweitzer learned that

4 Ashby urges that we adopt the holding in United States

v. Gray, 28 M.J. 858, 861 (A.C.M.R. 1989), which held that an

official act or investigation must be manifest before an

accused can be found guilty of obstruction of justice. The

holding in Gray is not only contrary to the language of the

MCM, which requires only proof that the accused had reason

to believe that there was or would be criminal proceedings

pending, it is contrary to this court’s precedent. See United

States v. Barner, 56 M.J. 131, 136 (C.A.A.F. 2001)

(“[O]bstructing justice can occur where the appellant ‘believed

that some law enforcement official of the military ... would

be investigating his actions.”) (citation omitted).

15a

twenty people had been killed; (2) Ashby and

Schweitzer learned as early as February 4, 1998,

that they were under criminal investigation by the

Italian authorities; (3) Schweitzer gave his

commanding officer the impression that they had not

used the camera during the flight; and (4) Ashby

admitted that he feared going to an Italian jail as

early as February 4, 1998. Based on the above

evidence, a reasonable factfinder could have found

all of the elements of obstruction of justice were met

in this case.

With regard to the offense of conspiracy, a

reasonable fae*finder also could have found beyond a

reasonable doubt that Ashby agreed with Schweitzer

to obstruct justice in a criminal proceeding and

committed an overt act in furtherance of that

agreement. Ashby and Schweitzer remained in the

cockpit together after the other two crewmembers

had evacuated the aircraft in accordance with

protocol. They discussed what to do with the

videotape, and Schweitzer told Ashby he thought

they should take the tape. Ashby then removed the

tape, replaced it with a blank one, and took the

recorded tape with him when he left the aircraft.

Ashby kept the tape in his quarters and did nothing

with the tape until Schweitzer approached him

about it several days later. After discussing what to

do with the tape, Ashby eventually gave it to

Schweitzer knowing that he was going to get rid of

it. There is no evidence in the record which compels

the conclusion that Ashby merely acceded to

Schweitzer’s authority in handing over the

videotape. We hold that the evidence presented at

trial supports a finding that all of the elements of

conspiracy were met.

16a

Finally, with regard to the elements of

Article 133, UCMJ, there is legally sufficient

evidence that Ashby commitied the charged acts, as

discussed above. There also is abundant evidence

supporting a conclusion that, under the

circumstances, Ashby’s acts or omissions constituted

conduct unbecoming an

officer and a gentleman. Ashby himself admitted

that his actions in taking the videotape and failing

to hand it over to the authorities were wrongful. As a

captain in the United States Marine Corps who was

the pilot of an aircraft that had been involved in an

international incident which caused the deaths of

twenty civilians, Ashby’s conduct in concealing

potential evidence and assisting in its destruction

was clearly conduct unbecoming an officer and a

gentleman.

[I.

WHETHER THE LOWER COURT

ERRED IN AFFIRMING’ THE

MILITARY JUDGE’S DECISION TO

EXPAND THE TERM “CRIMINAL

PROCEEDING” TO INCLUDE

OBSTRUCTION OF FOREIGN

CRIMINAL PROCEEDINGS.

Obstruction of justice underlies both of Ashby’s

convictions for conduct unbecoming an officer and a

gentleman. As discussed above, the members were

instructed that they must find that Ashby’s conduct

met all of the elements of the offense of obstruction

of justice as well as the elements of the offense of

conduct unbecoming an officer and a gentleman. One

of the elements of obstruction of justice under Article

17a

134, UCMJ, is that the accused knew or had

reason to know that there would be “criminal

proceedings” pending. MCM pt. IV, para. 96.b.(2).

The MCM does not define “criminal proceedings,”

but does provide:

Examples of obstruction of justice

include wrongfully influencing,

intimidating, impeding, or injuring a

witness, a person acting on charges

under this chapter, an investigating

officer under ‘R.C.M. 406, or a party;

and by means of bribery, intimidation,

misrepresentation, or force or threat of

force delaying or preventing

communication of information relating

to a violation of any criminal statute of

the United States to a person

authorized by a department, agency,

or armed force of the United States to

conduct, or engage in investigations or

prosecutions of such offenses; or

endeavoring to do so. MCM pt. IV,

para. 96.c.

Prior to trial, the military judge denied Ashby’s

motion in limine to prevent the Government from

arguing that the act of obstructing a foreigm criminal

investigation could support a charge of obstruction of

justice. The military judge ruled that foreign

criminal proceedings would fall under the definition

of “criminal proceedings” in the MCM if the

Government showed that the actions of the accused

in obstructing such proceedings were directly

prejudicial to good order and discipline or service

discrediting. Ultimately, the military judge

18a

instructed the panel’ that the term “criminal

proceedings” includes:

obstruction of foreign criminal

proceedings or investigations when

such obstruction of the criminal

proceedings or investigation have a

direct impact upon the efficacy of the

United States criminal justice system

by being directly prejudicial to good

order and discipline in the Armed

Forces or being directly discreditable

to the Armed Forces.

In this assignment of error, Ashby argues that it

is an unwarranted expansion of the term “criminal

proceedings” to include foreign criminal proceedings.

He argues that such an interpretation is contrary to

both a plain reading of MCM pt. IV, para. 96, which

contemplates obstruction of justice only in the

context of a United States criminal statute or

investigation, as well as the body of case law on the

subject. The Government responds that the offense

of obstruction of justice should be broadly

interpreted to include conduct that impedes a foreign

criminal proceeding, noting that nothing in the

MCM limits the scope of the offense to federal or

military criminal proceedings.

The fact that the MCM discussion does not

include a reference to a foreign criminal proceeding

is not dispositive. The examples referenced in the

MCM discussion are merely illustrative, not

exclusive. See MCM pt. IV, para. 60c(6)(c): “If

conduct by an accused does not fall under any of the

listed offenses for violations of Article 134 in this

Manual... a specification not listed in this Manual

19a

may be used to allege the offense.” Because

neither Article 133, UCMJ, nor Article 134, UCMJ,

expressly prohibit charging an obstruction of a

foreign investigation, the question becomes whether

Ashby had sufficient notice that his conduct could

violate Article 133, UCMJ. Parker v. Levy, 417 U.S.

733, 755-56 (1974).

Due process requires that a person have fair

notice that an act is criminal before being prosecuted

for it. United States v. Saunders, 59 M.J. 1, 6

(C.A.A.F. 2003). The Supreme Court examined the

issue of notice in the context of Articles 133, UCMd,

and 134, UCMJ, in Parker, 417 U.S. at 754-57. In

upholding the statutes against a constitutional

challenge for vagueness, the Court noted that the

statutes had been narrowed by example and that

content was supplied by custom and usage. The test

to be applied was articulated as:

[vloid for vagueness simply means that

criminal responsibility should not

attach where one could not reasonably

understand that his contemplated

conduct is proscribed. In determining

the sufficiency of the notice a statute

must of necessity be examined in the

light of the conduct with which a

defendant is charged.

Id. at 757 (citation omitted); see United States v.

Frazier, 34 M.J. 194, 198-99 (C.M.A. 1992) (the

question is whether a reasonable military officer

would have “no doubt” that the charged activities

constituted conduct unbecoming an officer and a

gentleman).

20a

Ashby cannot fairly claim that he lacked

notice of the criminality of his conduct by virtue of

the absence of the inclusion of foreign criminal

proceedings in the MCM. Undoubtedly, conduct of a

United States military officer designed to prevent

authorities of an allied foreign nation from

investigating a fatal accident on its national soil

involving United States military personnel may

constitute conduct unbecoming an officer and a

gentleman. See, e.g., United States v. Bailey, 28 M.J.

1004, 1007 (A.C.M.R. 1989) (“It can hardly be

gainsaid that it brings discredit upon the armed

forces of the United States when a soldier makes

false statements to foreign law enforcement officials

regarding an offense in which the soldier is involved

with a citizen of the host country.”). Here, a number

of factors support the conclusion that Ashby had

reasonable notice that taking the videotape from the

mishap aircraft, secreting it in his quarters, and

eventually providing the tape to Schweitzer to “get

rid of it” was both service discrediting and conduct

unbecoming an officer and a gentleman.

The NATO Status of Forces Agreement (NATO

SOFA) between the United States and Italy imposes

a duty on both parties to assist in carrying out

investigations, collecting and producing evidence,

and handing over objects related to an offense.5 An

experienced officer in Ashby’s position would or

should have been on notice of the NATO SOFA

provisions. As such, Ashby had notice that his

5 Agreement Between the Parties to the North Atlantic

Treaty Regarding the Status of Forces, Article VII, para. 6(a),

June 19, 1951, 4 U.S.T. 1792, 199 U.N.T.S. 67.

® Although there is no direct evidence in the record that

Ashby had actual knowledge of this provision of the NATO

Zla

conduct in failing to hand over a videotape

that he knew would have evidentiary value in an

Italian investigation violated his official duties.

Notice also arises from the fact that acts of

dishonesty and deceit are prohibited by illustration

in both Article 133, UCMJ, and Article 134, UCMJ.

See, e.g., MCM pt. IV, paras. 59.c.(2), 77 (false pass),

78 (obtaining services under false pretenses), and 79

(false swearing). In addition, common sense supports

the conclusion that Ashby was on notice that his

conduct violated the UCMJ. We have no doubt that

Ashby, as a seasoned officer and aircraft pilot,

understood that under the circumstances his actions

would reflect poorly upon him as an officer and

would discredit the service. We simply find nothing

in the UCMd or in the cases presented by Ashby that

supports his contention that the conduct in this case

cannot be sustained as conduct unbecoming an

officer and a gentleman because the criminal

investigation that was impeded was foreign rather

than domestic or military.’

SOFA, there is no dispute that he was aware of the

agreement as he acknowledged his rights under that treaty

when he signed the minutes of the Italian magistrate’s

interrogation in the presence of his Italian counsel on

February 4, 1998. Additionally, Ashby testified that he was

on his second deployment to Aviano at the time of the gondola

incident.

7 Our ruling today is limited to factual situation before

the court -- whether an Article 133, UCMJ, conduct

unbecoming an officer and a gentleman specification is legally

sufficient where the conduct underlying the charge was

incorporated by reference as an Article 134, UCMJ,

obstruction of justice charge, and where the military judge's

instruction linked the obstruction of the foreign criminal

proceeding to conduct that was “directly prejudicial to good

22a

III.

WHETHER THE LOWER COURT

ERRED IN AFFIRMING THE

MILITARY JUDGE’S DECISION TO

PERMIT FAMILIES OF THE

VICTIMS OF THE GONDOLA

CRASH TO TESTIFY ON

SENTENCING.

Over defense objection, the military judge

permitted three family members of victims who died

in the gondola incident to testify during the

Government’s case in aggravation. The military

judge limited the witnesses’ testimony, permitting

each witness only to: (1) identify himself or herself

as a relative of one of the victims; and (2) testify that

not knowing what was on the videotape had left

lingering questions regarding his or her loss. He

concluded:

I find that the proffered testimony of

the three witnesses regarding their

lingering questions as to what was on

the videotape to be relevant. I also

fina that a reasonable link exists

between such testimony and the

offenses before the [clourt.

I find the probative value of such

testimony to substantially outweigh

order and discipline in the Armed Forces or being directly

discreditable to the Armed Forces.”

23a

the danger of unfair prejudice,

confusion or delay in this trial.

The three witnesses were Georgio Vaia, Rita

Wunderlich, and Emma Aurich. Vaia testified he

was the nephew of the gondola operator. He

indicated that he had learned about the missing

videotape because he followed the investigation into

the incident. When asked whether he had lingering

questions about the videotape, Vaia testified:

When you have a suffering in the

family, when you lose somebody who

is very dear, a dear family member,

however heavy that suffering may be,

you try to accept what has happened;

and that acceptance is very gradual,

but it can be helped by knowing what

has happened.

Vaia affirmed that knowing that the videotape

had been destroyed had made it difficult for him to

get closure.

Wunderlich testified that her forty-three-year-old

husband and six of their friends were killed in the

gondola accident. She testified that she learned

about the missing videotape from the press. She

testified that, as a result of knowing that a videotape

had been destroyed, she had many lingering

questions that “dlid] not give [her] any peace.”

Aurich was the final of the three witnesses. When

asked who the members of her family were, she

responded: “I don’t have anybody anymore. They are

all dead.” She affirmed that her forty-year-old son

and daughter-in-law were killed in the gondola

accident. Aurich acknowledged that she learned of

24a

the missing videotape as__— she followed reports of

the investigation. When asked whether she had

lingering questions knowing that the tape had been

destroyed, she responded: “Yes. Yes. I’m suffering.

It’s painful, and I am suffering.” She affirmed that

the lingering questions would “follow [her

throughout herl whole life because [she did not]

know how they will be answered.”

Immediately following the above testimony, the

military judge instructed the panel members:

[Ylou are not invited or asked to

redress any wrong befalling the

victims’ family in this case but rather

to perform your proper role as a

representative of the community at

large to adjudge . . . an appropriate

sentence in this case.

... [T]he conduct of the flight and the

responsibility for the deaths and the

damage to the aircraft have already

been the subject of another proceeding

and are not before you for resolution

So, again, during this phase of the

trial, you will not be determining a

sentence based upon either the deaths

or damage to the aircraft.

We review a military judge’s decision on the

admission of evidence in aggravation at sentencing

for an abuse of discretion. United States v. Stephens,

67 M.J. 233, 235 (C.A.A.F. 2009). At sentencing,

“trial counsel may present evidence as to any

25a

aggravating circumstances _ directly

relating to or resulting from the offenses of which

the accused has been found guilty.” Rule for Courts-

Martial (R.C.M.) 1001(b)(4). Evidence in aggravation

includes “evidence of .. . psychological . . . impact on

... any person... who was the victim of an offense

committed by the accused ... .” Id. Even if

admissible under R.C.M. 1001(b)(4), the evidence

must pass the balancing test of Military Rule of

Evidence (M.R.E.) 403. M.R.E. 403 states “Although

relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or

misleading the members, or by considerations of

undue delay, waste of time, or needless presentation

of cumulative evidence.” Where the military judge

conducts a proper M.R.E. 403 balancing on the

record, we will not overturn his ruling unless we find

a clear abuse of discretion. Stephens, 67 M.J. at 235.

Here the military judge performed a M.R.E. 403

balancing test and found “the probative value of such

testimony to substantially outweigh the danger of

unfair prejudice, confusion or delay in this trial.”

Ashby does not argue that the testimony fails to

meet the requirements of R.C.M. 1001(b)(4), but does

argue that admission of the evidence was an abuse of

discretion because the prejudicial effect of the

evidence far outweighed its probative value. He

argues that the testimony was “enflaming” and

unnecessarily huinanized the victims, unfairly

portrayed him as responsible for their deaths, and

went beyond the military judge’s limited mandate.

We disagree with Ashby’s characterization of this

testimony and conclude that the military judge did

not abuse his discretion in admitting it. The military

judge recognized the possible prejudicial effect of the

26a

testimony and substantially limited it

to include only the effect that the missing videotape

had on the witnesses’ ability to process his or her

loss. He ensured that the witnesses’ testimony did

not go beyond those limitations in any meaningful

way. While the testimony was prejudicial to the

defense -- after all that is the general purpose of

evidence in aggravation -- the evidence was not

unfairly prejudicial. In its restricted form, the

testimony was

brief and rather straightforward. Although the

record reflects that the witnesses were visibly

emotional during their testimony, they were not

disruptively so. In its limited form, the admission of

the testimony was not an abuse of discretion.

IV.

WHETHER THE LOWER COURT

ERRED IN SUMMARILY

DISMISSING APPELLANT'S

ARGUMENT THAT THE MILITARY

JUDGE ABUSED HIS DISCRETION

WHEN HE DENIED THE DEFENSE

MOTION FOR A MISTRIAL BASED

ON THE TRIAL COUNSEL’S

COMMENTS REFERENCING (1)

APPELLANTS INVOCATION OF

HIS RIGHT TO REMAIN SILENT TO

ITALIAN AUTHORITIES; AND (2)

HIS GENERAL RIGHT TO REMAIN

SILENT WITH RESPECT TO NOT

DISCLOSING INFORMATION

ABOUT THE VIDEOTAPE.

27a

During her opening statement, trial counsel told

the members that Ashby had admitted that he never

told anyone about the videotape even though he

knew that there was going to be an investigation

into the incident. She then stated that Ashby,

Schweitzer, and Capt. Seagraves met and discussed

what they should do with the videotape even after

they knew that twenty civilians had been killed and

after they had appeared before an Italian prosecutor.

She went on to tell the members:

Even prior to that appearance before

this Italian prosecutor, they were

assigned Italian defense counsel. You

will hear testimony by these crew

members that they were told that they

had a right to remain silent, similar to

American law, and that they invoked

that right to remain silent.

Immediately following trial counsel’s opening

statement, the defense requested a recess and the

panel members were excused. Trial defense counsel

moved for a mistrial based on trial counsel’s

comment about Ashby’s failure to disclose the

existence of the tape and his invocation of his right

to remain silent. After holding an R.C.M. 915(a)

hearing on the motion outside the presence of the

panel, the military judge denied the motion for a

mistrial. He found that, while trial counsel’s

references to the fact that Ashby did not tell anyone

about the videotape were based on evidence before

the court, this was “not an area that counsel needed

to be addressing.” He also found that trial counsel’s

reference to Ashby’s invocation of his right to remain

28a

silent was clear error. The military judge went

on to conclude that these errors could be

appropriately addressed through a _ curative

instruction.

The military judge gave the parties an

opportunity to re-voir dire the members and

required trial counsel to redact her statements. He

also gave the parties an opportunity to draft a

proposed curative instruction. The defense declined

the offer to re-voir dire the panel and suggested that

additional

language be added to the Government's proposed

curative instruction. The military judge called the

panel members back into the courtroom and

instructed them:

I want to just remind you that Captain

Ashby has an absolute right to remain

silent at all times. I want to remind

you that you will not draw any

inference adverse to Captain Ashby

from any comment by the trial counsel

in her opening statement that might

suggest that Captain Ashby invoked

his right to remain silent. You are

directed to disregard any comment by

trial counsel that may have alluded to

any silence by Captain Ashby. You

must not hold this against Captain

Ashby for any reason, or speculate as

to this matter. You are not permitted

to consider that Captain Ashby may

have exercised his absolute right to

29a

remain silent, at any time, as

evidence for any purpose.

As you know, we spent a great deal of

time yesterday talking about the

accused’s right to remain silent.

Accordingly, Captain Ashby was not

required to speak to anyone about the

video tape. Again, to the extent that

the trial counsel may have implied

that he was required to speak to

anyone about the tape, that was

incorrect.

The panel members were individually polled and

each indicated that he would not let trial counsel’s

comments impact his deliberations. The military

judge reiterated these instructions at the conclusion

of the evidence.

Ashby argues that the military judge erred in

finding that a curative instruction could alleviate the

“egregious’ harm arising from the improper

comments that trial counsel made during her

opening statement. He asserts that the comments

suggested to the members that he had something to

hide and argues that the error was compounded by

other evidence that the Government introduced at

trial suggesting that he exercised his right to remain

silent.2 The Government responds that the military

8 In support of this argument, Ashby cites to the

testimony of the Italian magistrate that: (1) he initiated a

criminal investigation in this case on February 3, 1998; (2) on

February 4, 1998, he interrogated Ashby and the other

crewmembers; and (3) on that day, Ashby signed a document

acknowledging that he was the subject of an Italian criminal

investigation. Ashby also cites to testimony that a friend of

30a

judge’s curative instruction owas an

appropriate remedial measure and obviated the need

for a mistrial.

R.C.M. 915(a) vests military judges with the

discretion to declare a mistrial when “manifestly

necessary in the interest of justice because of

circumstances arising during the proceedings which

cast substantial doubt upon the fairness of the

proceedings.” However, the discussion to the rule

advises caution, noting that mistrials are to be used

“under urgent circumstances, and for plain and

obvious reasons.” R.C.M. 915 Discussion; see United

States v. Garces, 32 M.J. 345, 349 (C.M.A. 1991)

(mistrial is a drastic remedy used to prevent

miscarriage of justice). Because of the extraordinary

nature of a mistrial, military judges should explore

the option of taking other remedial action, such as

giving curative instructions. United States _v.

Fisiorek, 43 M.J. 244, 247 (C.A.A.F. 1995); United

States v. Evans, 27 M.J. 34, 39 (C.M.A. 1988). We

will not reverse a military judge’s determination on

a mistrial absent clear evidence of an abuse of

discretion. United States v. Rushatz, 31 M.J. 450,

456 (C.M.A. 1990).

It is blackletter law that a trial counsel may not

comment on the _ accused’s exercise of his

constitutionally protected rights, including his right

to remain silent. M.R.E. 301(£)(3); United States v.

his -- Capt. M — did not learn about the destruction of the

videotape until Capt. Seagraves came out with the

information. We find nothing in either the Italian

magistrate’s or Capt. M’s testimony that can be construed as

an additional comment on Ashby’s exercise of his right to

remain silent.

3la

Moran, 65 M.J. 178,186 (C.A.A.F. 2007).

Therefore we concur with the military judge’s

assessment that

trial counsel’s comments. referencing Ashby’s

invocation of his right to remain silent were

improper. Moran, 65 M.J. at 186-87. We must now

determine whether the error resulted in a

miscarriage of justice requiring a mistrial. As this~

error was of constitutional dimension, we also must

determine whether the error and the military judge’s

curative efforts rendered it harmless beyond a

reasonable doubt. Chapman vy. California, 386 U.S.

18, 24 (1967) (“[Blefore a federal constitutional error

can be held harmless, the court must be able to

declare a belief that it was harmless beyond a

reasonable doubt.”).

In analyzing this question, we ask “whether

there is a reasonable possibility that the evidence [or

error] complained of might have contributed to the

conviction.” United States v. Paige, 67 M.J. 442, 451

(C.A.A.F. 2009) (quoting Moran, 65 M.J. at 187)

(alteration in original). The question is not whether

the members were “totally unaware” of the error;

rather, the essence of a harmless error is that it was

“unimportant in relation to everything else the jury

considered on the issue in question.” Moran, 65 M.J.

at 187 (quoting Yates v. Evatt, 500 U.S. 391, 403

(1991), overruled on other grounds by Estelle v.

McGuire, 502 U.S. 62, 72 n.4 (1991)). We analyze

trial counsels’ comments in the context of the entire

court-martial. Id. at 186.

Upon consideration of the entire record, we hold

that the error was harmless beyond a reasonable

doubt. The military judge took immediate corrective

action which included giving the members a curative

32a

instruction, requiring trial counsel to redact

her statements, and asking each member

individually whether he could follow the military

judge’s instructions. He also reminded the members

at the close of the evidence about Ashby’s absolute

right to remain silent. Absent evidence to the

contrary, the members are presumed to follow the

military judge’s instructions. United States v.

Jenkins, 54 M.J. 12, 20 (C.A.A.F. 2000). We conclude

that the military judge’s actions following the

improper comment adequately cured the error and

rendered it harmless beyond a reasonable doubt. As

such, a mistrial was not an appropriate remedy.

Rushatz, 31 M.J. at 456

(“Giving a curative instruction, rather than

declaring a mistrial, is the preferred remedy for

curing error when court members have heard

inadmissible evidence, as long as the curative

instruction avoids prejudice to the accused.”)

(citation omitted).

WHETHER THE LOWER COURT

ABUSED ITS DISCRETION IN NOT

FINDING THAT A SENTENCE

WHICH INCLUDED SIX MONTHS

OF CONFINEMENT AND _ AN

APPROVED DISMISSAL WAS

INAPPROPRIATELY SEVERE.

VI.

WHETHER THE LOWER COURT

ERRED IN SUMMARILY

DISMISSING APPELLANT'S

33a

ARGUMENT THAT THE ;

DESTRUCTION OF THE

VIDEOTAPE HAD NO EFFECT ON

THE ADMINISTRATION OF

JUSTICE BECAUSE IT CONTAINED

NO MATERIAL EVIDENCE.

Having considered Issues V. and VI., we find no

error aid therefore affirm the Court of Criminal

Appeals.

Vil.

WHETHER APPELLANT'S DUE

PROCESS RIGHTS HAVE BEEN

VIOLATED BY THE UNTIMELY

POST-TRIAL PROCESSING AND

APFELLATE REVIEW OF HIS

COURT-MARTIAL.

Over ten years have elapsed since Ashby’s trial.

He was sentenced on May 10, 1999. The convening

authority took action on January 3, 2000. The case

was docketed at the Navy-Marine Corps court on

March 13, 2000. On December 4, 2003, after filing

thirty-three motions for an enlargement of time,

appellate defense counsel] filed a brief on Ashby’s

behalf. The Government answered on September 2,

2004, after filing six motions for an enlargement of

time. The lower court issued its initial decision in

this case on June 27, 2007, 2,970 days -- over eight

years -- after Ashby was sentenced. The decision on

further review after remand was issued on June 17,

2008.

Despite this significant period of delay, Ashby did

not initially complain about delay before the Court of

34a

Criminal Appeals. In its June 27, 2007 opinion,

that court, sua sponte, raised and addressed the

issue of post-trial delay. Ashby, 2007 CCA LEXIS

235, at *123, 2007 WL 1893626, at *42. The lower

court found that, while the delay in this case denied

Ashby his due process right to speedy review and

appeal and was so egregious that tolerating it would

adversely affect the public’s perception of the

fairness and integrity of the military justice system,

the due process violation was harmless beyond a

reasonable doubt. Id. at *127-*129, 2007 WL

1893626, at *42-*43. The lower court reasoned that

Ashby had never asserted his right to a speedy

review and appeal and his assignments of error

lacked merit. Id. at *128, 2007 WL 1893626, at *43.

The court noted that, when it reviewed the case on

remand, it would consider at that time whether it

would be appropriate to grant discretionary relief for

the delay under Article 66(c), UCMJ, 10 U.S.C. § 866

(2000). Id.

When the case was returned for further review,

the lower court reconsidered the issue of harm

arising from the delay and reaffirmed that the

constitutional error in this case remained harmless

beyond a reasonable doubt. Ashby, No. NMCCA

200000250, slip op. at 4. The lower court noted that

Ashby’s only allegation of specific prejudice -- an

assertion that he would be prejudiced at any

rehearing -- was rendered moot by the court’s

resolution of his assignments of error against him.

Id. The court stated: “We further find that the

length of the delay in this case does not affect the

findings and sentence that should be approved under

Article 66(c), UCMJ.” Id.

Before this court Ashby argues that the post-trial

delay in his case violated his due process rights and

35a

was so extraordinary that the lower court

should have granted him discretionary relief under

its Article 66(c), UCMJ, authority. He also asserts

that the lower court ignored the materials submitted

with his second clemency request, which established

that he suffered lost employment opportunities, was

unable to travel, and suffered mental anguish as a

result of the delay. The Government argues that the

lower court was correct in ultimately denying Ashby

relief and urges that providing relief for the delay in

this case would provide Ashby with an undeserving

windfall.

Article 66(c), UCMJ, vests in the Courts of

Criminal Appeals broad authority to determine the

findings and sentence that should be approved.

Toohey v. United States, 60 M.J. 100, 103 (C.A.A.F.

2004). In conducting its sentence appropriateness

review under Article 66(c), UCMJ, a Court of

Criminal Appeals has “broad discretion to grant or

deny relief for unreasonable or unexplained [post-

trial] delay .. . .” United States v. Pflueger, 65 M.J.

127, 128 (C.A.A.F. 2007) (quoting United States v.

Bodkins, 60 MJ. 322, 324 (C.AA.F. 2004))

(alteration in original). “The power to review a case

for sentence appropriateness .. . is vested in the

Courts of Criminal Appeals, not in [this] Court,

which is limited to errors of law.” United States v.

Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). Here, the

Court of Criminal Appeals properly performed its

Article 66(c), UCMJ, sentence appropriateness

review on the record, and we will not disturb its

conclusion that the delay did not affect the findings

and sentence that should be approved. Nor do we

fault the Court of Criminal Appeals for failing to

address Ashby’s employment prejudice argument,

which was based upon clemency materials submitted

36a

to the convening authority but was not

argued before that court.

We agree with the lower court that upon

balancing the four factors outlined in United States

v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), the

unreasonable post-trial delay in this case violated

Ashby’s due process right to a spcedy post-trial

review and appeal.® The length of delay is facially

unreasonable, triggering the four-step inquiry and

favoring Ashby in the balancing analysis. The second

factor also favors Ashby as there are no legally

supportable explanations for the delay. See Diaz v.

Judge Advocate General of the Navy, 59 M.J. 34, 38-

40 (C.A.A.F. 2003); Moreno, 63 M.J. at 136°38.1°

The third factor favors the Government as Ashby did

not assert his right to a timely review until the

Court of Criminal Appeals raised the issue, sua

sponte, in its initial decision.

As to the Barker prejudice factor, Ashby has not

sustained his burden of showing particularized

9 In assessing whether a facially unreasonable delay has

resulted in a due process violation, we weigh the following

four factors, as set forth in Barker v. Wingo, 407 U.S. 514,

530 (1972): (1) the length of the delay; (2) the reasons for the

delay; (3) the appellant’s assertion of the right to timely

review and appeal; and (4) prejudice. Moreno, 63 M.J. at 135.

10 The Supreme Court recently held that the general rule,

that a delay caused by a defendant’s counsel is charged to the

defendant, applies equally to privately retained or publically

assigned counsel. Vermont v. Brillon, 129 S. Ct. 1283, 1292

(2009). The Court noted, however, that this rule was not

absolute and that delay resulting from a systemic breakdown

in the public defender system could be charged to the state.

Id. The impact of the Brillon decision on this court's

jurisprudence was not briefed nor argued in this appeal and it

is therefore not appropriate for the court to address at this

time.

37a

prejudice. After the case was remanded, there

remained no meritorious issues which may have

generated concern about Ashby’s ability to present a

defense or favorable matters at a rehearing. Ashby

has not suffered any oppressive incarceration. There

is no indication that Ashby suffered unusual anxiety

or hardship separate from that normally experienced

by an individual awaiting an appeal. The fact that

Ashby did not raise the issue of post-trial delay until

after the lower court identified the issue cuts against

his claim that he was harmed by the delay. Ashby’s

belated claim that he lost job opportunities as a

result of his inability to travel due to his appellate

leave status does not establish actionable harm

arising from the delay.!!

Despite the fact that Ashby has not established

prejudice under the Barker analysis, in balancing

and weighing the four factors, we agree with the

lower court that the delay violated Ashby’s due

1! Ashby did not claim prejudice arising from lost

employment opportunities before the lower court. In his brief

before this Court and during oral argument, Ashby called our

attention to a letter from a potential employer, dated

December 17, 2005, which he submitted with his clemency

materials when the case was before the convening authority a

second time. The letter does not specifically state that the

company would have hired Ashby if he had a DD 214. It does,

however, note that Ashby was unable to travel and would

“find it difficult to obtain a government security clearance.”

Obtaining a DD 214 would alleviate Ashby’s inability to

travel but, as we have affirmed the Article 133, UCMJ,

convictions, may or may not address the difficulty he may

have in obtaining a security clearance. Under the

circumstances of this case, this letter does not establish

specific prejudice under United States v. Jones, 61 M.J. 80, 85

(C.A.A.F. 2005).

38a

process rights to a speedy post-trial review

and appeal. 12

Having found a due process violation, we will

grant relief unless we find that the Government has

met its burden of showing that the constitutional

error is harmless beyond a reasonable doubt. United

States v. Bush, 68 M.J. 96, __ (15) (C.A.A.F. 2009).

We review de novo the question of whether the error

is harmless beyond a reasonable doubt. Id. at 15-16

(citing United States v. Allison, 63 M.J. 365, 370

(C.A.A.F. 2006)). We consider the totality of the

circumstances in assessing whether the due process

violation is harmless beyond a reasonable doubt. Id.

at 17. We recently have noted that determining

whether a due process error was harmless beyond a

reasonable doubt necessarily involves analyzing the

case for “prejudice,” but that analysis for “prejudice”

is separate and distinct from the consideration of

prejudice as one of the four Barker factors. Id. at 18.

Having carefully examined the entire record, we

agree with the lower court that, under the totality of

the circumstances, the post-trial delay was harmless

beyond a reasonable doubt. Finding no convincing

evidence of prejudice in the record, we will not

presume prejudice from the length of the delay

alone. Toohey, 63 M.J. at 363. As such, considering

all the circumstances of this case, we conclude that

this error was harmless beyond a reasonable doubt

and no relief is warranted.

12 See United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.

2006) (instructing on how to weigh the Barker factors when

the delay period is such that it could adversely affect the

public’s perception of the fairness in the military justice

system).

39a

VI.

WHETHER THE LOWER COURT

ERRED IN FINDING (1) THAT

APPELLANTS CASE WAS NOT

TAINTED BY ACTUAL OR

APPARENT UNLAWFUL

COMMAND INFLUENCE; AND (2)

THAT LTGEN PACE WAS NOT

DISQUALIFIED TO ACT AS

CONVENING AUTHORITY BY

VIRTUE OF BEING A TYPE 2 AND

TYPE 3 ACCUSER.

The gondola incident was the focus of a great deal

of international and military attention. Normally,

aircraft incidents such as this one would call for an

Aircraft Mishap Board (AMB), but in this case,

Lieutenant General (Lt. Gen.) Pace, who was serving

as the Commander, United States Marine Corps

Forces Atlantic, and Commander, United States

Marine Corps Forces Europe, convened a Command

Investigation Board (CIB) headed by his deputy,

Major General (Maj. Gen.) DeLong. The CIB was an

administrative factfinding body, not a prosecutorial!

or judicial entity. The CIB recommended that the

mishap aircrew be the subject of disciplinary or

administrative action. Lt. Gen. Pace ultimately

referred the charges to a general court-martial.

This granted issue involves Ashby’s complaints of

unlawful command influence -- concerning actions of

the CIB, as well as some external actions taken

outside the investigation -- and his separate claim

that Lt. Gen. Pace was disqualified from serving

as the convening authority in this case because he

was an “accuser” under R.C.M. 601(c). As to these

40a

claims, we adopt the following relevant facts,

as found by the military judge.

On February 4, 1998, the day after the gondola

accident, at Marine Corps Air Station, Cherry Point,

North Carolina, Lieutenant Colonel (Lt. Col.)

Watters, the Commanding Officer of the unit that

had preceded Ashby’s unit in the rotation at Aviano,

advised all of the officers in his squadron to make

any low-level flight videotapes from Aviano

“disappear.” Lt. Col. Watters was relieved of his

command on February 6, 1998, because of his speech

to the officers.

After learning of Lt. Col. Watters’s speech and

the existence of video of a low-level flight several

months earlier, Maj. Gen. Ryan, the commander of

the 2d Marine Aircraft Wing at Cherry Point,

addressed all of the aircrews from the Prowler

communities at Cherry Point at an all-officers

meeting (AOM). During the meeting, Maj. Gen.

Ryan implied that the mishap aircrew caused the

accident and were intentionally breaking rules by

flying toc low. He was perceptibly upset during the

meeting, and accused the Prowler community as a

whole of violating rules on low-level flights

(“flathatting”), and threatened them with

punishment for violating flight rules. Maj. Gen.

Ryan gave similar speeches over the next several

days. He never. specifically addressed any

disciplinary proceedings against the mishap aircrew,

what would be an appropriate punishment in the

case, or whether fellow aviators should testify in the

case.

Lt. Gen. Pace and Maj. Gen. DeLong had

virtually daily telephonic contact throughout the

duration of the CIB. These conversations concerned

proposed findings, conclusions, and

4la

recommendations of the CIB. These

conversations were monitored by Lt. Gen. Pace’s

SJA. All of Lt. Gen. Pace’s suggestions to Maj. Gen.

DeLong were to clarify issues and, in one instance,

Lt. Gen. Pace suggested two areas for additional

investigation. Maj. Gen. DeLong also received

numerous phone calls from other senior officers

seeking information about the progress of the CIB,

including at least one call from the Commandant of

the Marine Corps.

During the course of the CIB, there was intense

international media coverage of the gondola incident

and unsettled political relations between the United

States and Italy. These issues were known by the

CIB members. Also while the CIB investigation was

ongoing, Brigadier General (Brig. Gen.) Bowden, the

Assistant Wing Commander for the 2d Marine

Aircraft Wing and Maj. Gen. Ryan’s deputy,

conducted an investigation of Prowler aircrews at

Cherry Point to determine whether there were

systemic problems with aircrews not following the

flight rules for low-level flights. As part of this

investigation, each aircrew member was read his or

her Article 31, UCMJ, 10 U.S.C. § 831 (2000), rights

for possible dereliction of duty.

Between February 21, 1998, and March 9, 1998,

draft copies of the CIB’s report were sent to Lt. Gen.

Pace for his review and comments. On March 10,

1998, the final report of the CIB was submitted to

Lt. Gen. Pace and others for their review and action.

Each member of the CIB affirmed that his or her

findings, opinions, and recommendations were not

influenced by any contacts with superior commands,

42a

with the exception of those’ issues raised by

the testimony of one member. !4

Lt. Gen. Pace began drafting an endorsement to

the CIB’s report. He composed it with the guidance

of his legal counsel. The endorsement stated Lt.

Gen. Pace’s intent to convene an Article 32, UCM,

10 U.S.C. § 832 (2000), investigation “to consider

whether charges such as involuntary manslaughter

or negligent homicide, damage to private and

government property, and dereliction of duty should

be referred to a general courtmartial” against the

mishap aircrew. Lt. Gen. Pace’s headquarters issued

a news release announcing these recommendations

and Lt. Gen. Pace’s agreement with the CIB’s

principal conclusion that the cause of the accident

was the fact that the aircrew flew lower than

authorized.

On March 12, 1998, Maj. Gen. DeLong conducted

a press conference at which he announced the CIB’s

findings. During that press conference, he

incorrectly stated that the gondola cable system was

marked on charts available to the aircrew. There is

no indication that this mischaracterization was

anything other than a mistake. He also stated that

the cause of the mishap was aircrew error. After the

press conference, Maj. Gen. DeLong met with the

unit that had replaced Ashby’s unit at Aviano. At

that meeting, he expressed his opinion that. the

13 One of the CIB members, Colonel (Col.) B, testified that

some members of the CIB had concerns about the frequency

and number of proposed changes being offered to their draft

reports. Maj. Gen. DeLong was apprised of the complaint and

told the CIB members not to be concerned about what others

outside the Board wanted them to say in their report.

43a

aircrew was “flathatting.”

The original charges were preferred against the

four mishap aircrew members on March 24, 1998, by

Gunnery Sergeant Ciarlo. ‘The initial Article 32,

UCM, session was held on April 20, 1998. The next

day, Capt. Howard Marroto, an aviator assigned to

Ashby’s unit, met with the Commandant in his

Washington, D.C. office. The Commandant

expressed that the mishap crew would be disciplined

if they did anything wrong and that “if someone is

gui'ty, they need to be punished.” Capt. Marroto is a

friend of both Ashby and Schweitzer, though not

particularly close to either. On May 20, 1998, Col.

Triplett, the Commanding Officer of Marine Air

Group 14, sent an e-mail to members of his

command, cautioning them: “You need to brief your

people on this issue. You don’t want to be drug [sic]

into this mess.” He sent this e-mail im response to a

message informing him how to handle inappropriate

discovery requests by the defense counsel.

Lt. Gen. Pace referred the original charges

against Ashby and Schweitzer on July 10, 1998. The

additional charges were preferred against Ashby and

Schweitzer after they were arraigned on the original

charges. After Ashby’s acquittal in his first court-

martial, the United States Ambassador to Italy

stated that he was surprised at the verdict. In a

press conference, President Clinton declined to

comment on the acquittal, but Italian Prime

Minister D’Alema expressed his disappointment in

the verdict.

Unlawful Command Influence

We first address Ashby’s claim of unlawful

command influence. Ashby argues that the record

44a

supports a finding that the CIB board was so

interwoven with the prosecutorial process of the case

that it was a “default preferral” and should not fall

outside of the prohibition against unlawful command

influence He also argues that senior leadership

exerted unlawful command influence over potential

witnesses in this case by creating an overall “chilling

environment,” and in the following specific actions:

(1) Maj. Gen. Ryan and Maj. Gen. DeLong’s public

speeches, amounting to “public condemnations of

Appellant” to the pool of aviators from whom

Appellant would select defense witnesses; (2) Brig.

Gen. Bowden’s investigation of other Prowler crews:

(3) the Commandant’s comments to Capt. Marotto;

and (4) Col. Triplett’s e-mail to his command

advising his command to make sure they are not

“drug [sic] into this mess.” Ashby further contends

that the established facts give the case the

appearance of unlawful command influence.

The Government responds that Ashby has failed

to identify any facts that, if true, would call into

question the fairness of his court-martial. The

Government urges us to reject Appellant’s invitation

to hold that administrative proceedings can be the

basis of a claim of unlawful command influence. The

Government notes that all of the events relating to

the CIB occurred before the conduct underlying the

two Article 133, UCMJ, charges came to light.

In Ashby’s first court-martial, the military judge

concluded that the concept of unlawful command

influence did not apply to actions taken by

individuals during the CIB, which was a purely

administrative board, and, nonetheless, the CIB’s

decision did not result from outside influences. He

further concluded that the defense had presented

insufficient evidence of unlawful command influence

45a

to warrant shifting the burden of proof to the

Government on the issue and, alternatively, he was

convinced beyond a reasonable doubt that the

charges against Ashby were free from actual or

apparent unlawful command influence. In Ashby’s

second court-martial, the military judge re-affirmed

his findings from the first court-martial regarding

the unlawful command influence allegations. _

The Court of Criminal Appeals adopted the

military judge’s findings of fact. Ashby, 2007 CCA

LEXIS 235, at *88-*89, 2007 WL 1893626, at *29.

The court generally agreed with the military judge’s

position that, because the CIB was merely a

factfinding entity and was not involved in the court-

martial proceedings, the principle of unlawful

command influence was not applicable to it. Id. at

*90-*91, 2007 WL 1893626, at *30. Nonetheless, the

court was convinced beyond a reasonable doubt that

there was no unlawful command influence at any

stage of the proceedings, noting: (1) the lack of

evidence that Lt. Gen. Pace acted with the intent to

influence the court-martial proceedings; and (2) the

fact that Ashby had not shown that any of the other

alleged statements or actions of leadership officials,

made or taken in response to the gondola tragedy,

had a specific direct or negative impact on the court-

martial process. Id. at *91-*94, 2007 WL 1893626, at

*30-*31. The lower court concluded that,

nonetheless, no alleged unlawful command influence

affected the instant court-martial, as: (1) Ashby was

acquitted of all of the original charges against him;

and (2) he had not shown that this court-martial,

which was separate and distinct from the original

court-martial, was affected in any way by unlawful

command influence. Id. at *94- *97, 2007 WL

1893626, at *31.

46a

Unlawful command influence has often been

referred to as “the mortal enemy of military justice.”

United States v. Gore, 60 M.J. 178, 178 (C.A.A.F.

2004) (citation and quotation marks omitted). Article

37(a), UCMJ, 10 U.S.C. § 837(a) (2000), provides, in

relevant part: “No person subject to this chapter may

attempt to coerce or . . . influence the action of a

courtmartial or any other military tribunal or any

member thereof, in reaching the findings or sentence

in any case... .” Even the mere appearance of

unlawful command influence may be “as devastating

to the military justice system as the actual

manipulation of any given trial.” United States v.

Ayers, 54 M.J. 85, 94-95 (C.A.A.F. 2000) (citation

and quotation marks omitted). This Court has

“repeatedly condemned unlawful command influence

directed against prospective witnesses.” Gore, 60

M.J. at 185.

An accused has the initial burden of raising the

issue of unlawful command influence. United States

v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994). This

burden at trial is to show facts which, if true,

constitute unlawful command influence, and that the

alleged unlawful command influence has a logical

connection to the court-martial, in terms of its

potential to cause unfairness in the proceedings.

United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F.

1999). On appeal, the defense must “(1) show facts

which, if true, constitute unlawful command

influence; (2) show that the proceedings were unfair;

and (3) show that the unlawful command influence

was the cause of the unfairness.” United States v.

Simpson, 58 M.J. 368, 374 (C.A.A.F. 2003) (quoting

Biagase, 50 M.J. at 150).

We conclude that Ashby has failed to show facts

which, if true, constituted unlawful command

47a

influence. His claims regarding the CIB are

predicated on communications between the members

of the CIB and various senior military officers.

However, he has failed to show facts which, if true,

would demonstrate that the CIB members were

wrongfully influenced. Ashby is asking us to

speculate on pressure placed on members of the CIB

as a result of the attention that the military gave to

this case. Mere speculation that unlawful command

influence occurred because of a specific set of

circumstances is not sufficient. Ashby has failed to

show that the senior military officials’ interest in the

CIB was anything other than proper, official, and

lawfully directed at completing a quality and

thorough investigation. 4

With regard to Ashby’s claim of unlawful

command influence arising from the other actions by

senior military officials, including the Commandant,

Ashby has not pointed to any specific witnesses who

decided not to testify because of the alleged

statements by senior military officials or any other

specific facts that the court-martial process was

tainted by unlawful command influence. Because of

the highly publicized international nature of the

incident, it is understandable that many senior

military officials became publicly involved in the

aftermath and investigation of the accident.

However, there is no direct evidence that the actions

of any of those officials improperly influenced

Ashby’s court-martial.

‘4 We decline to adopt a blanket rule that unlawful

command influence can never exist in the context of an

administrative proceeding, but find that in this case it did

not.

48a

We also hold that the _ facts in this case did not

create the appearance of unlawful command

influence. In addressing whether the appearance of

unlawful command influence has been created in a

particular situation, we consider, objectively, “the

perception of fairness in the military justice system

as viewed through the eyes of a reasonable member

of the public.” United States v. Lewis, 63 M.J. 405,

415 (C.A.A.F. 2006). We will find the appearance of

unlawful command influence where “an objective,

disinterested observer, fully informed of all the facts

and circumstances, would harbor a significant doubt

about the fairness of the proceeding.” Id. Under

these circumstances, the comments made by senior

military officials in the aftermath of the gondola

accident and their official involvement in the

investigation of the incident could not reasonably be

perceived by a disinterested member of the public as

improper command influence or otherwise indicative

of an unfair proceeding.

As a final matter, we note that Ashby was

acquitted on all of the charges that were filed after

the CIB issued its recommendation, and the CIB was

neither aware of nor considered the conduct

underlying the Article 133, UCMJ, charges. It is

therefore not surprising that Ashby is unable to

allege facts which, if true, would constitute unlawful

command influence when the CIB members were

unaware of the conduct underlying the current

charges.

Accuser Issue

The question of whether a convening authority is

49a

“accuser” under Article 1(9), UCMJ, 10 U.S.C. §

801(9) (2000), is a question of law that we review de

novo. See United States v. Conn, 6 M.J. 351, 354

(C.M.A. 1979). Under Article 1(9), UCMJ, an accuser

is an individual: (1) “who signs and swears to

charges”; (2) “who directs that charges nominally be

signed and sworn to by another [type two accuser]”:

or (3) “who has an interest other than an official

interest in the prosecution of the accused [type three

accuser].” An accuser may not convene a general or

special court-martial, nor may he refer charges to a

court martial. R.C.M. 504(c)(1); R.C.M. 601(c).

Convening authorities are not disqualified from

referring charges by prior participation in the same

case except when they have acted as accuser.”

R.C.M. 601(c) Discussion.

Ashby argues that the convening authority, Lt.

Gen. Pace, should have been disqualified from

serving as the convening authority in this case

because he was an “accuser” within the definition in

Article 1(9), UCMJ. Ashby contends that Lt. Gen.

Pace was a “type two” accuser because he essentially

engineered the preferral process through influencing

the CIB and identifying the charges in his

endorsement of the CIB report -- the same charges

that ultimately were preferred. Ashby asserts that

forwarding the CIB report was the functional

equivalent of directing specific charges to be

preferred. He also argues that Lt. Gen. Pace was a

“type three” accuser by virtue of his deep personal

involvement in the CIB. proceedings and

predisposition towards Ashby’ guilt. The

Government responds that Lt. Gen. Pace was not

disqualified from acting as convening authority, as

there was no evidence that he was acting improperly

50a

or in anything but his’ official capacity in

taking actions regarding the mishap incident.

In Ashby’s first court-martial, the military judge

found that Lt. Gen. Pace did not “direct” the

preferral of any particular charges against Appellant

even though he forwarded the CIB report for the

drafting of charges and mentioned some specific

charges. The military judge noted that the similarity

between the charges mentioned in the endorsement

to the CIB and the charges that appeared on the

charge sheet was a result of a legal review of the

CIB. He also found that Lt. Gen. Pace’s interest in

the disposition of the allegations and preferred

charges was an official interest only. In Ashby’s

second court martial, the military judge ruled that

Lt. Gen. Pace had no interest in the current charges

other than an official one.

Addressing this issue on appeal, the lower court

concluded that Lt. Gen. Pace was neither a “type

two” nor a “type three” accuser regarding the

original charges preferred against Ashby, since: (1)

there was no credible evidence that Lt. Gen. Pace

“directed” that charges specifically be preferred; and

(2) the evidence established that Lt. Gen. Pace’s

interest in the disposition of the allegations and

preferral of charges against Ashby was only an

“official” one and that he did not abandon his neutral

role and become an “accuser.” Ashby, 2007 CCA

LEXIS 235, at *65-*66, *70-*74, 2007 WL 1893626,

at *21-*23.

The test for determining whether a convening

authority is an accuser is “whether he was so closely

connected to the offense that a reasonable person

would conclude that he had a personal interest in

the matter.” United States v. Voorhees, 50 M.J. 494,

499 (C.A.A.F. 1999) (quoting United States v.

5la

Jackson, 3 M.J. 153,154 (C.M.A. 1977)).

“Personal interests relate to matters affecting the

convening authority’s ego, family, and personal

property” and “{a] convening authority's dramatic

expression of anger towards an accused might also

disqualify the commander if it demonstrates

personal animosity.”

Id. We have found a personal interest where, for

example, the convening authority is the victim in the

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

C.M.R. 161 (1952); where the accused attempted to

blackmail the convening authority, United States v.

Jeter, 35 M.J. 442 (C.M.A. 1992); and where the

accused had potentially inappropriate personal

contacts with the convening authority’s fiancée,

United States v. Nix, 40 M.J. 6 (C.M.A. 1994).

We have carefully reviewed Ashby’s assertions,

the record materials, and the findings of fact. We

agree with the Court of Criminal Appeals that Lt.

Gen. Pace took no actions equivalent to directing

that charges nominally be signed and sworn to by

another. Lt. Gen. Pace’s action in forwarding the

CIB to the servicing legal office for consideration of

appropriate charges was consistent with the

performance of his duties as a commander. We

presume that the legal officers properly performed

their professional duties which included independent

review of the evidence and preparation of only those

charges for which they determined probable cause

existed. See Article 34, UCMJ, 10 U.S.C. § 834

(2000) (imposing a duty on the staff judge advocate

to prepare advice to the convening authority before a

charge is referred to a general court-martial); United

States v. Masusock, 1 C.M.A. 32, 35, 1 C.M.R. 32, 35

(1951) (citing the presumption that a public officer

charged with a particular duty has performed it

52a

properly); United States v. Roland, 31 M.J. 747,

750 (A.C.M.R. 1990) (“We will presume, in the

absence of

evidence to the contrary, that the staff judge

advocate properly discharged his duties.”). In this

light, Lt. Gen. Pace did nothing to make him a

nominal accuser. In addition, any ciaim that he was

a “type two” accuser is diminished in the case of

these particular charges, as they were not

investigated by the CIB, were not encompassed in

Lt. Gen. Pace’s forwarding endorsement to the CIB,

and were independently preferred. Ashby has failed

to show any acts by Lt. Gen. Pace that would make

him a “type two” accuser.

Concerning Ashby’s claim that Lt. Gen. Pace was

a “type three” accuser, this record contains no

evidence of personal interest or bias on the part of

Lt. Gen. Pace such that he was transformed into a

de facto accuser. Although Lt. Gen. sauce was

involved in the preliminary investigation of the case,

his interest appears to have beer wholly official.

Interest in an incident and the investigation thereof

is not personal -- it is in fact the responsibility of a

commander. Similarly, the frequency of Lt. Gen.

Pace’s contact with the CIB or the number of times

that he reviewed the draft CIB report do not reflect a

personal rather than a professional interest. Again,

we note that these charges stem from outside the

CIB. Ashby has failed to show that he is entitled to

relief as to this issue.

IX.

WHETHER THE LOWER COURT

ERRED IN FINDING THAT THE

CONVENING AUTHORITY DID NOT

53a

ABUSE HIS DISCRETION

IN FAILING TO WITHDRAW THE

ARTICLE 133, UCMJ, CHARGE

FROM REFERRAL TO A GENERAL

COURT-MARTIAL ONCE

APPELLANT WAS ACQUITTED OF

THE ORIGINAL CHANGES.

In his final assignment of error, Ashby argues

that, given Lt. Gen. Pace’s personal involvement in

the disposition of the case, the media pressure

surrounding it, and his acquittal on the original

charges, Lt. Gen. Pace’s referral of the Article 133,

UCMJ, charges to a general court-martial was in

bad faith and constituted an abuse of discretion. The

Government responds that, considering that Ashby

was a commissioned officer and that the charges

required significant investigations, the convening

authority’s decision to refer the case to a general

court-marital was not improper.

R.C.M. 306(b) provides that “lalllegations of

offenses should be disposed of . . . at the lowest

appropriate level of disposition . . . .” However, under

R.C.M. 306 and R.C.M. 407, a convening authority

exercising general court-martial jurisdiction has

wide discretion to choose among a variety of options

in disposing of a charge, including referring the

charges to a general court-martial. See R.C.M. 407;

United States v. Dinges, 55 M.J. 308, 314 (C.A.A.F.

2001) (discussing the “virtually unfettered authority”

of a commander exercising special court martial

jurisdiction).

We hold that the convening authority’s decision

to refer the Article 133, UCM.', charge to a general

court-martial, rather than a lesser forum, was not an

abuse of his discretion. As we noted earlier, the

54a

matter of the destruction of the

videotape was discovered after the original charges

had been referred, and a separate charge alleging

violations of Article 133, UCMd, was preferred. Lt.

Gen. Pace directed that the Article 133, UCM,

charge be tried in conjunction with the original

charge. However, at his initial trial, Ashby refused

to consent to the joinder of the Article 133, UCMJ,

charge, and Lt. Gen. Pace withdrew it. Ashby was

therefore aware that the Article 133, UCMJ,

specifications could later be separately referred —

and they were.

Since the two Article 133, UCM, specifications

were initially referred before Ashby was acquitted on

the original charges, it is difficult to say that the re-

referral of the Article 133, UCMJ, charge was in any

way retaliatory. Ashby’s allegation of bad faith is

unfounded. We conclude that Lt. Gen. Pace acted

within his discretion in referring the Article 133,

UCMJ, charges to a general court-martial, where

Ashby was a commissioned officer and the charges

involved obstruction of justice in an exhaustive

investigation into the deaths of twenty people and

extensive damage to military property.

DECISION

We affirm the decision of the United States Navy-

Marine Corps Court of Criminal Appeals.

STUCKY, Judge (concurring):

I concur in the Court's judgment, and in virtually

all of Judge Erdmann’s exhaustive opinion. I write

separately only to note my understanding of the

55a

discussion of Issue I, and to state a

reservation with respect to Issue VII.

With respect to Issue I, as the lead opinion notes,

the Government elected to incorporate the existing

offenses of obstruction of justice (Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 934 (1994)) and conspiracy to obstruct justice

(Article 81, UCMd, 10 U.S.C. § 881 (1994)) into the

Article 133, UCMJ, 10 U.S.C. § 933 (1994), charge of

conduct unbecoming an officer and a gentleman. The

military judge instructed the members on the

elements of those underlying offenses, and the Court

of Criminal Appeals analyzed the issue of legal

sufficiency in those terms. I do not understand the

lead opinion as holding that the military judge was

required to do as he did, but simply as applying the

law of this case as we found it. I wholly concur with

the legal sufficiency analysis of the lead opinion as it

relates to the elements of the underlying offenses.

With respect to Issue VII, consistent with the

position I took in United States v. Bush, I question

the application of the “public perception” standard of

United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006)

(Toohey II). See Bush, 68 M.J. 96, __ (1-8) (C.A.A.F.

2009) (Ryan, J., with whom Stucky, J., joined,

concurring in the judgment). However, I completely

agree with the lead opinion’s holding that Appellant

has not made the requisite showing of prejudice

under Barker v. Wingo, 407 U.S. 514, 530 (1972). I

therefore concur.

56a

APPENDIX B

UNITED STATES NAVY-MARINE

CORPS

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

E.E. GEISER, J.W. ROLPH, F.D. MITCHELL

Appellate Military Judges

UNITED STATES OF AMERICA

Vv.

RICHARD J. ASHBY

CAPTAIN (0-3), U.S. MARINE CORPS

RESERVE

NMCCA 200000250

GENERAL COURT-MARTIAL

Sentence Adjudged: 10 May 1999.

Military Judge: Col A.W. Keller, Jr., USMC.

Convening Authority: Commanding General,

U.S. Marine Corps Forces Command, Norfolk,

VA.

Staff Judge Advocate's Recommendation: Col

M.E. Reheuser, USMCR.

For Appellant: LT Kathleen Kadlec, JAGC,

USN.

For Appellee: Capt Roger Mattioli, USMC.

57a

17 June 2008

AS AN UNPUBLISHED DECISION, THIS OPINION DOES

NOT SERVE AS PRECEDENT.

PER CURIAM:

Officer members sitting as a general court-

martial convicted the appeilant, contrary to his

pleas, of conspiracy to obstruct justice and

obstruction of justice, in violation of Article 133,

Uniform Code of Military Justice, 10 U.S.C. § 933.

On 10 May 1999, the appellant was sentenced to

confinement for six months, forfeiture of all pay and

allowances, and a dismissal.

On 3 January 2000, the convening authority (CA)

approved the sentence as adjudged. On 27 June

2007, this court issued a decision returning the case

to the Judge Advocate General of the Navy for

remand to an appropriate CA for either a hearing

pursuant to United States v. DuBay, 37 C.M.R. 411

(C.M.A. 1967) or a new staff judge advocate's

recommendation (SJAR) and convening authority’s

action.'5 The CA elected to conduct a new post-trial

review rather than a DuBay hearing. A new SJAR

dated 9 October 2007 was served on the detailed

‘5 United States v. Ashby, No. 200000250, 2007 CCA

LEXIS 235, unpublished op. (N.M.C.C.A. 27 June 2007).

58a

defense counsel on 29 October 2007 and on the

co-defense counsel on 4 November 2007. After two

extensions of time, the defense submitted new

matters pursuant to RULE FOR COURTS-MARTIAL

1105 and 1106, MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2005 ed.) on 15 February 2008. A

supplemental SJAR was completed on 7 March 2008.

The CA took action on 11 March 2008.

Prior to our initial decision, the appellant

submitted twelve assignments of error, all of which

were addressed and resolved in our decision.

Additionally, this court sua sponte raised the issue

of post-trial delay. Notwithstanding a transcript

comprising approximately 5,800 pages spanning 67

volumes and including hundreds of exhibits and

attachments, we nonetheless found that a delay of

more than eight years from trial to our initial

decision was facially unreasonable. 1é We

determined that the delay was so “egregious that

tolerating it would adversely affect the public’s

perception of the fairness and integrity of the

military justice system.”'7 Having found a due

process violation, we considered the record as .a

whole and the totality of the circumstances relating

to the delay in this case. We held that the appellant

suffered no specific prejudice, that the constitutional

due process violation was harmless beyond a

reasonable doubt, and that no relief was warranted

at that time. We noted, however, that we would

reconsider this issue when the case was redocketed

following compliance with our order.

‘6 The appellant was sentenced on 10 May 1999. Our

initial decision in this case was issued on 27 June 2007.

17 Ashby, 2007 CCA LEXIS 236 (citing United States v.

Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006)).

59a

On 27 March 2008, the appellant was

provided an opportunity to submit additional matters

for consideration. On 28 April 2008, the appellant

submitted a pleading which summarily re-alleged the

twelve assignments of error previously denied by this

court. The appellant submitted additional law and

argument on three of the assignments of error. With

respect to his assignment of error alleging that the

military judge erred in denying a defense motion for

mistrial, the appellant offers four recent Court of

Appeals for the Armed Forces cases in support.}!®

Having carefully reviewed the four cited cases, we find

nothing to disturb our prior ruling on this issue. The

appellant also reiterated his claim that an approved

sentence including six months confinement and an

approved dismissal was inappropriately severe.

Finally, we will revisit the issue of post-trial delay.

We have examined the record of trial, the

appellant’s assignments of error, and_ the

Government’s response. We conclude that the

findings and the sentence are correct in law and fact

and that no error materially prejudicial to the

substantial rights of the appellant was committed.

Art(s) 59(a) and 66(c).

Sentence Severity

The appellant raised sentence severity in his

pleadings prior to our first decision. His most recent

submission correctly notes that our prior disposition

of his allegation of error was premised on an

18 United States v. Erickson, 65 M.J. 221 (C.A.A.F. 2007);

United States v. Schreeder, 65 M.J. 49 (C.A.A.F. 2007);

United States v. Paxton, 64 M.J. 484 (C.A.A.F. 2007); and,

United States v. Moran, 65 M.J. 178 (C.A.A.F. 2007).

60a

improper standard of review.’ We _ will,

therefore, take a fresh look at this assignment of

error applying the correct standard of review.

Specifically, we will determine whether we

independently find the sentence appropriate for

these offenses and this offender. United States v.

Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); United

States v. Snelling, 14 M.J. 267 (C.M.A. 1982).

A court-martial is free to impose any lawful

sentence that it determines appropriate. United

States v. Turner, 34 C.M.R. 215, 217 (C.M.A. 1964).

Our review of sentence appropriateness involves the

‘judicial function of assuring that justice is done and

that the accused gets the punishment he deserves.”

United States v. Healy, 26 M.J. 394, 395 (C.M.A.

1988). When reviewing sentence appropriateness,

we are mindful that clemency is the prerogative of

the convening authority. Jd. at 396.

The appellant was found guilty to two

specifications of conduct unbecoming an officer.

Specifically, the appellant, a pilot, was found guilty

of having conspired with one of his Navai Flight

Officer (NFO) crewmates to obstruct justice by

secreting and destroying a videotape recording with

potential relevance to a major mishap investigation

which he reasonably believed would also result in a

criminal investigation of the aircrew. Some days

later, after being informed that twenty people had

died as a result of the mishap, the appellant turned

the videotape over to his NFO co-conspirator who

destroyed it by casting it into a bonfire.

We are not unmindful of the appellant’s

19 Our prior opinion quoted language from United States

v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980) articulating an

incorrect standard of review.

6la

exemplary military record prior to the

offense. We have carefully considered the evidence

presented during the presentencing portion of the

trial. We are convinced that the adjudged and

approved sentence to include confinement and a

dismissal is an appropriate punishment for this

offender and his offenses. The appellant’s actions

were a direct affront to the naval service’s core value

of personal integrity.

Post-Trial Delay

Almost one year has elapsed since our initial

decision in this case. The appellant's assertion that

he would be prejudiced at any rehearing is mooted

by our resolution of his assignments of error. He

offers no additional allegation of specific prejudice.

Having carefully re-reviewed the record of trial and

the appellant’s pleadings, we find no such prejudice.

See United States v. Moreno, 63 M.J. 129 (C.A.A.F.

2006). We find, therefore, that the constitutional

due process violation identified in our prior decision

remains harmless beyond a reasonable doubt. We

further find that the length of the delay in this case

does not affect the findings and sentence that should

be approved under Article 66(c), UCMJ. United

States V. Brown, 62 M.J. 602, 607

(N.M.Ct.Crim.App. 2005)(en banc)(citing United

States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002).

Conclusion

The appellant’s remaining assignments of error

are without merit. The findings and approved

sentence are affirmed.

For the Court

62a

R.H. TROIDL

Clerk of Court

Senior Judge ROLPH participated in the decision of this case

prior to commencing terminal leave.

63a

APPENDIX C

IN THE U.S. NAVY-MARINE CORPS COURT

OF CRIMINAL APPEALS

WASHINGTON NAVY YARD

WASHINGTON, D.C.

BEFORE

D.O. VOLLEN

J.W. ROLPH WEIDER

E.E. GEISER

UNITED STATES

Richard J. ASHBY

Captain (O-3), U.S. Marine Corps Reserve

NMCCA 200000250 Decided 27 June 2007

Sentence adjudged 10 May 1999. Military Judge:

A.W. Keller. Staff Judge Advocate's

Recommendation: Col D.E. Clancey, USMC. Review

pursuant to Article 66(c), UCMJ, of General Court’

Martial convened by Commanding General, U.S

Marine Forces, Atlantic, Norfolk, VA.

Maj ANTHONY C. WILLIAMS, USMC, Appellate

Lefense Counsel,

Maj ROLANDO SANCHEZ, USMC, Appellate

64a

Defense Counsel

Maj KEVIN HARRIS, USMC, Appellate Government

Counsel,

Maj ROBERT M. FUHRER, USMC, Appellate

Government Counsel, LT FRANK L. GATTO, JAGC,

USN, Appellate Government Counsel

AS AN UNPUBLISHED DECISION, THIS OPINION DOES

NOT SERVE AS PRECEDENT.

ROLPH, Chief Judge:

Background

On the 3rd of February 1998, the appellant was the

pilot of an EA-6B “Prowler” aircraft engaged in a low:

level training mission in the Italian Alps outside of

Aviano, Italy. On the final leg of the flight, he flew the

aircraft well below established minimum altitudes,

impacting and _ severing two weight-bearing

suspension cables of the Alpe Cermis cable car system

located at varying heights approximately 365 to 450

feet above ground level near the town of Cavalese,

Italy. The mishap caused a descending gondola car

and all of its passengers to plummet approximately

365 feet to the earth below. Twenty civilians from

numerous nations riding in the gondola were killed,

and substantial property damage (in the millions of

dollars) was suffered by both the aircraft and the cable

car system. Despite serious damage to their airplane

including the complete loss of hydraulics, the EA-6B

crew was able to return to the North Atlantic Treaty

Organization (NATO) air base in Aviano, Italy, where

the appellant conducted a_ successful emergency

landing.

On the date of this tragic incident, the appellant

65a

was an_ active-duty Marine Corps aviator

assigned to Marine Tactical Electronics Warfare

Squadron TWO (VMAQ-2) based in Cherry Point, N.C.

The EA-6B’s crew consisted of the appellant as pilot,

along with three electronic counter measures officers

(ECMO’s) including Captain (Capt) Joseph P.

Schweitzer, USMC, the appellant’s navigator” and

subsequent co-accused. The mishap crew’s squadron

had been deployed in Aviano, Italy, since August 1997

in support of NATO operations.?!

The appellant ultimately faced two general

courts"martial for offenses arising out of this

tragedy, both convened by the Commanding General,

U.S. Marine Forces, Atlantic, and assembled at

Camp Lejeune, North Carolina. The appellant was

charged at his first general court-martial with

multiple offenses, including: two specifications of

dereliction of duty; negligently suffering military

property to be damaged; recklessly damaging non-

military property; twenty’ specifications of

involuntary manslaughter; and twenty specifications

of negligent homicide in violation of Articles 92, 108,

*” There are three ECMO positions in the EA-6B Prowler,

which has a four-seat cockpit. Capt Schweitzer was “ECMO

1” during the mishap flight, which placed him in the right

front seat next to the appellant. This ECMO position is

generally responsible for navigation, communications, and

defensive electronic countermeasures. “ECMO 2” was Capt

William L. Raney, I], USMC, and “ECMO 3” was Capt

Chandler P. Seagraves, USMC, both of whom were located in

the aircraft's aft cockpit.

2! Capt Seagraves was not assigned to VMAQ-2, but was

present within that squadron as an advance party member

from VMAQ-4. He was invited to participate as a member of

the mishap crew for low level mission familiarization

66a

109, 119, and 134, Uniform Code of

Military Justice, 10 U.S.C. §§ 892, 908, 909, 919, and

934. The appeilant was ultimately acquitted of all

offenses by officer members on 04 March 1999

(Ashby I).

Because he earlier refused to consent to the

joinder after arraignment of an additional charge

and two specifications alleging conduct unbecoming

an officer by conspiring with Capt Schweitzer to

obstruct justice (endeavoring to impede a criminal

investigation) by secreting a videotape he removed

from the cockpit of his aircraft and thereafter

participating in its destruction, and _ actually

obstructing justice based upon these same actions in

violation of Article 133, UCMJ, 10 U.S.C. § 933,

these offenses were referred to a second general

court-martial on 15 October 1998. At his second

general court-martial, officer members convicted the

appellant, contrary to his pleas, of both Article 133

offenses. On 10 May 1999, he was sentenced by the

members to six months’ confinement, total

forfeitures, and a dismissal (Ashby II). On 03

January 2000, the convening authority approved

both the findings and the adjudged sentence.

Assignments of Error

The appellant has’ raised 12 _ separate

assignments of error (AOE's) for this court’s

consideration, all of which relate to his second

general court-martial.22, We sua sponte raise and

22 We summarize the AOF's as follows:

I. The evidence is neither legally or factually sufficient to

support a conviction for obstruction of justice under Article

67a

133, UCM.

II. The evidence is neither legally or factually sufficient to

support a conviction for conspiracy to obstruct justice under

Article 133, UCMJ.

III. The appellant received ineffective assistance of

counsel when the defense team failed to present evidence

relating to the appellant’s acute stress disorder and/or post-

traumatic stress disorder as it negated the appellant’s ability

to form the specific intent to impede an investigation.

IV. The military judge erred in instructing the members

that the term “criminal proceedings” as used in the military’s

obstruction of justice offense includes foreign criminal

proceedings.

V. Because the destroyed videotape contained no material

evidence, its destruction could not effect the due

administration of justice.

VI. The appellant was deprived of a fair trial due to

apparent unlawful command influence that tainted the

proceedings and may have chilled potential witnesses.

VII. The military judge erred in failing to dismiss the

charge and both specifications as the convening authority was

both a “type two” and “type three” accuser.

VIII. Even if the convening authority was not an accuser,

he was nevertheless disqualified from taking post-trial action

in the appellant’s case where post-trial submissions by

defense counsel required him to address issues which

involved his personal credibility.

IX. The military judge erred in denying the defense

motion for a mistrial based on trial counsel’s reference to the

appellant’s invocation of his right to remain silent, as well as

references to his non-disclosure of the videotape in question.

X. The military judge erred in allowing family members of

the victims of the gondola crash to testify on sentencing.

XI. The convening authority abused his discretion in

failing to withdraw the Article 133 offenses (conduct

unbecoming an officer by conspiring to obstruct justice and

actual obstruction of justice) from referral to a second general

court-martial after the appellant was acquitted of all original

charges at his first court-martial.

XII. A sentence which includes six months confinement

68a

address the issue of excessive post-trial delay, which

has plagued this case from the date sentence was

announced -- much of which is the _ direct

responsibility of this court. Most helpful in our

thorough review of all issues assigned were the

excellent briefs of appellate counsel, as well as the

superb oral arguments by counsel for both the

appellant and the Government presented before this

court on O09 April 2007. After having carefully

considered all of the appellant’s AOE's,23 the issue

we have raised sua sponte, along with the evidence

of record and the military judge’s extensive findings

of fact and conclusions of law, we believe additional

fact-finding is required to properly resolve the issue

of whether the staff judge advocate and his deputy

were disqualified from participating in the post-trial

review of this case because of their alleged actions in

support of the prosecution team. We shall order

such action in our decretal paragraph. See Arts.

59(a) and 66(c), UCMJ.

I. Legal and Factual Sufficiency of the Evidence

a. Background

and an approved dismissal is inappropriately severe.

23 We have given thorough and careful consideration to

AOE V and AOE IX and have determined each to be without

merit. They will not be discussed further in this opinion. See

United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). In

regard to AOE IX, even if error occurred, we are confident

that the military judge’s curative instructions rendered any

such error harmless beyond a reasonable doubt.

69a

In his first and second AOE's, the appellant

asserts that the evidence presented at his second

general court-martial was both legally and factually

insufficient to support his conviction under Article

133, UCMJ, for conduct unbecoming an officer by

conspiring with Capt Schweitzer to obstruct justice

(by endeavoring to impede an investigation), or for

actual obstruction of justice by removing, secreting,

and ultimately destroying a videotape recorded by

Capt Schweitzer during the mishap flight.

Appellant’s Brief and Assignment of Errors of 4 Dec

2003 at 8-17. The essence of the appellant’s

argument in this regard is that the appellant could

not subjectively or objectively have known or

believed that a criminal investigation or proceeding

would be forthcoming as a result of the gondola

mishap. /d. at 9. Because he had no reason to

believe that a criminal investigation or proceeding

was forthcoming, the appellant claims he could

never have formed the specific intent to impede

such, or the “due administration of justice.” Jd. at

10-11. He additionally claims he was incapable of

forming any specific intent at all because he was

allegedly suffering from acute stress disorder and/or

post-traumatic stress disorder as a result of the

mishap (see AOE III, Part II below). Jd. at 20.

Finally, he asserts that there was no evidence of a

conspiratorial agreement or “meeting of the minds”

between himself and Capt Schweitzer, and that he

never formed the “conscious purpose to conspire” or

to commit the alleged object of the conspiracy. /d. at

19. We find no merit in any of these contentions.

The evidence at trial was largely undisputed as to

what took place immediately before and after this

tragic aviation disaster. Capt Schweitzer borrowed

70a

the appellant’s video camera for the mishap

flight. It was to be his last flying mission prior to

leaving active duty, and he desired to have a

remembrance that would document for friends and

family what he did as a naval flight officer. Record

at 928; 1272-74. As Capt Schweitzer explained:

I asked [Capt Ashby] over the

weekend if I could borrow [the video

cameral. Basically I wanted to take

some low level -- not low level, but

footage of basically how we were

flying. It was the last week we were

going to be there. I was getting out in

June, and I wanted to have something

to have so I could show my friends, my

kids, and say, hey, this is what your

dad did. ...

Id. at 928. Before the flight, Capt Schweitzer

purchased a pack of two blank tapes. With the

appellant’s assistance, he loaded one of the tapes

during the flight and shot video footage during three

separate legs of their six-legged mission. Record at

931-32. Capt Schweitzer claimed at trial that the

camera was not in use at the time of the mishap,

which occurred on the last leg of the mission. Jd. at

932, 980.

After the cable strike, the crew was well aware

that their aircraft was seriously damaged and that,

under the best circumstances, an emergency landing

at the NATO air base in Aviano would be required.

They also feared they might have to eject from the

aircraft. After successfully executing an arrested

landing at the Aviano air base, the two aft

crewmembers immediately executed an emergency

71la

egress from the aircraft in accordance with

standard mishap protocol. Before exiting the

aircraft, Capt Raney, who was in the aft cockpit,

overheard someone he believed was the appellant

asking “Is it blank?” Jd. at 1173; 1287-88. The

appellant and Capt Schweitzer, did not egress the

aircraft, but instead elected to remain in the forward

cockpit discussing what to do with the recorded

videotape.

Knowing that their aircraft would be immediately

impounded and inventoried due to the mishap, and

seeking not to have the recorded videotape “become

an issue” during the investigation they knew was

forthcoming, Capt Schweitzer ultimately told the

appellant, “Let’s take the tape.” Record at 935, 1293,

1295; Prosecution Exhibit 2 at 1. Though both were

uncertain of everything depicted on the videotape,

Capt Schweitzer was aware that the tape, at a

minimum, showed the mishap aircraft executing a

flaperon roll24 during a ridgeline crossing on the first

leg of the flight, and, in a separate segment,

contained a scene of him smiling into the video

camera while holding it in the air and pointing it

back at himself. Record at 938, 939. Capt

Schweitzer handed the appellant the video camera,

and the appellant removed the recorded tape and

substituted in its place a new and unused tape. /d.

at 935, 1294; PE 2 at 1-2. The appellant then placed

the recorded tape in his flight suit pocket and exited

the aircraft, leaving behind the video camera loaded

with the unrecorded tape, along with the camera’s

% A flaperon roll is a 360-degree twisting maneuver

about the long axis of the aircraft, often performed during

ridgeline crossings.

72a

carrying bag. Record at 936, 1294; PE 2 at 2.

The recorded videotape remained in the appellant’s

possession during the next few days (4 to 6 February

1998), during which he and the other crewmembers

learned that 20 people had died as a result of their

flight mishap, that the Italian government had

initiated a criminal investigation into the matter,

that Italian and military defense counsel had been

hired/detailed to represent the crewmembers, and

that a “Command Investigation Board” (CIB)25 had

been convened by the Marine Corps to look into the

facts and circumstances concerning their flight.

Three to four days after the mishap (on or about

07 February 1998) the appellant was walking from

the mess hall with Capt Schweitzer and Capt

Seagraves. When Capt Schweitzer described the

recorded videotape to Capt Seagraves and asked his

opinion as to what they should do with it, Seagraves

responded, “I would get rid of it” or words to that

effect. Record at 937. This statement was made in

the appellant’s presence.26 Later, fully aware that

25 A CIB is one of several authorized methods specified in

the Manual of the Judge Advocate General for investigating

significant operational or training mishaps that involve loss

of life and/or significant property damage. See §0208,

Manual of the Judge Advocate General (JAGMAN), JAG

Instruction 5800.7D (15 March 2004). At the time of this

incident, the CIB procedures and guidance were contained in

§ 0209 of the JAGMAN, JAG Instruction 5800.7C (03 October

1990).

26 Though the appellant claimed to have not heard this

exchange, Capt Schweitzer testified that the conversation

took place within two to five feet of the appellant, and that

there was “no doubt” the appellant was close enough to have

heard what was said. Record at 939, 964, 966-67.

73a

the videotape contained footage of his inverted

ridgeline crossing and other segments of the mishap

flight, and worried that such would be

“misinterpreted” by investigators, the appellant gave

the videotape to Capt Schweitzer, who subsequently

destroyed it by throwing it into a bonfire. Jd. at 938-

40, 950, 1299. The appellant was advised of the

tape’s destruction by Capt Schweitzer shortly

thereafter. Jd. at 950. The existence and destruction

of this videotape only came to the attention of

military investigators in August 1998, once Capt

Seagraves received testimonial immunity and

elected to disclose “the truth about everything.” /d.

b. Law

This court has a duty under Article 66(c), UCMd,

to affirm only those findings of guilty that we find to

be correct in both law and fact. The long established

test for assessing the legal sufficiency of the evidence

is whether, considering all the evidence in a light

most favorable to the prosecution, any rational trier

of fact could have found the elements of the offenses

beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 318-19 (1979); United States v. Barner, 56

M.J. 131, 134 (C.A.A.F. 2001); United States v.

Turner, 25 M.J. 324, 325 (C.M.A. 1987); see also Art.

66(c), UCMJ. The test for assessing the factual

sufficiency of the evidence is whether, after weighing

all the evidence in the record of trial and recognizing

that we did not see or hear the witnesses, as did the

members, this court is nevertheless convinced of the

appellant’s guilt beyond a reasonable doubt. Turner,

— —.

74a

25 M.J. at 325; see also Art. 66(c), UCMJ. Our

reasonable doubt standard does not require that the

evidence presented be free from conflict. United

States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986).

Further, this court may properly believe one part of

a witness’ testimony while disbelieving other aspects

of the testimony, or may chose to believe one

witness’ testimony over that of another. United

States v. Harris, 8 M.J. 52, 59 (C.M.A. 1979).

To convict the appellant for obstruction of justice

as alleged under Article 133, UCMd, the

Government had to prove the following elements

beyond a reasonable doubt:

1. That the accused wrongfully did a

certain act;

2. That the accused did so in the case of

a certain person against whom the

accused had reason to believe there

were or would be criminal proceedings

pending;

3. That the act was done with the intent

to influence, impede, or otherwise

obstruct the due administration of

justice;

4. That, under the circumstances, the

conduct of the accused was to the

prejudice of good order and discipline in

the armed forces or was of a nature to

bring discredit upon the armed forces;

and

5. That, under the circumstances, these

75a

acts or omissions constituted

conduct unbecoming an officer and

gentleman.

To convict the appellant for conspiracy to

obstruct justice as alleged under Article 133, UCMJ,

the Government had to prove the following elements

beyond a reasonable doubt:

1. That the accused entered into an

agreement with one or more persons to

commit an offense under the UCMd;

2. That, while the agreement continued

to exist, and while the accused

remained a party to the agreement, the

accused or his co-conspirator performed

an overt act for the purpose of bringing

about the object of the conspiracy; and

3. That, under the circumstances, these

acts or omissions constituted conduct

unbecoming an officer and gentleman.

See MANUAL FOR COURTS-MARTIAL, UNITED STATES

(1998 ed.)27, Part IV, | 96b (obstruction of justice), 4

5 (conspiracy), and J 59c(2)(conduct unbecoming an

officer and gentleman).

The UCMd’s prohibition against obstruction of

justice has as its overriding concern the protection

and sanctity of the administration of justice within

our military system. United States v. Guerrero, 28

27 Unless otherwise noted, all future references the MCM

will be to the 1998 edition.

76a

M.J. 223, 227 (C.M.A. 1989). That said, the

term “criminal proceeding” as used in defining this

offense has been interpreted broadly, and includes,

at a minimum, lawful searches,?8 criminal

investigations conducted by police or command

authorities, 29

Article 15 nonjudicial punishment proceedings, *°

Article 32 investigations,®! courts-martial, and state

and federal criminal trials.92 See Military Judges’

Benchbook, Dept of the Army Pamphlet 27-9 at 686

(15 Sep 2002). It has also been interpreted to

include certain foreign investigations and

proceedings. See Discussion of AOE IV, Part III

below. There is no requirement that an actual

criminal proceeding be underway at the time of the

appellant’s obstructive actions, or that actual

obstruction of justice occur. See MCM 44] 96b and c.

As the offense’s second element makes clear, it is

sufficient if the appellant’s wrongful act(s) occurred

in the case of a person against whom he had reason

to believe there were er would be criminal

proceedings pending. Jd. at 4 96b (emphasis added);

see United States v. Lennette, 41 M.J. 488, 490

28 United States v. Turner, 33 M.J. 40, 42 (C.M.A.

1991)(“When a servicemember obstructs a search, one can

clearly state that a criminal investigation is being impeded.”).

29 United States v. Athey, 34 M.J. 44 (C.M.A. 1992);

United States v. Guerrero, 28 M.J. 223 (C.M.A. 1989); United

States v. Zaccheus, 31 M.J. 766 (A.C.M.R. 1990).

30 MCM (1984), Part IV, { 96(c) notes that “the term

criminal proceeding includes nonjudicial punishment

proceedings.”

31 United States v. Daminger, 31 C.M.R. 521 (A.F.B.R.

1961).

82 United States v. Smith, 34 M.J. 319, 322 (C.M.A.

1992).

77a

(C.M.A. 1995)(citing United States v. Athey,

34 MwJ. 44, 49 (C.M.A. 1992); United States v.

Culbertson, __ M.J. __, No. 200000982, 2007 CCA

LEXIS 162, at 11 (N.M.Ct.Crim.App. 10 May 2007).

Cc. Discussion

1. Objective and subjective belief of pendency

of a criminal investigation or proceeding

The appellant argues that, at the time he

removed and secreted the videotape from the cockpit

of his aircraft, he could not objectively or subjectively

have believed that any criminal investigation or

proceeding would be forthcoming as a result of the

mishap. Appellant’s Brief at 11-16. Because he was

not yet aware that 20 people had died, the appellant

claims that the worst case scenario in his mind after

landing his damaged plane was the _ possible

pendency of an aircraft mishap board (AMB) or a

CIB being conducted, both of which are completely

administrative in nature. /d. Relying on Athey, the

appellant asserts that he therefore could not have

entertained the requisite intent for obstruction of

justice as he did not surmise the possibility that, at

some time in the future, a criminal investigation or

proceeding might take place or that he wished to

prevent such a proceeding.

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