

   
   
   
   U.S. v. Ayers



IN THE CASE OF
UNITED STATES, Appellee
v.
Jeffery L. AYERS, Sr., Staff Sergeant
U.S. Army, Appellant
 
No. 99-0944
Crim. App. No. 9701847
 
United States Court of Appeals for the Armed
Forces
Argued April 6, 2000
Decided September 11, 2000
GIERKE, J., delivered the opinion of the
Court, in which
EFFRON, J., and COX, S.J., joined, and
in which
CRAWFORD, C.J., joined as to Issues III,
IV, and V.
CRAWFORD, C.J., filed an opinion concurring
in part
and dissenting as to Issue I. SULLIVAN,
J., filed
a dissenting opinion.
Counsel
For Appellant: Captain Donald P. Chisholm
(argued); Colonel Adele H. Odegard, Major Scott R. Morris,
and Major Kirsten V. C. Brunson (on brief).
For Appellee: Captain Paul T. Cygnarowicz
(argued); Colonel Russell S. Estey and Major Patricia A. Ham
(on brief).
Military Judges: Larry R. Dean and Alfred F.
Arquilla
 
 


This opinion is subject
to editorial correction before publication.



Judge GIERKE delivered the opinion
of the Court.
A general court-martial composed of
officer and enlisted members convicted appellant, contrary to his pleas,
of attempted adultery, attempted violation of a lawful general regulation,
violation of a lawful general regulation (5 specifications), adultery,
and indecent assault (2 specifications), in violation of Articles 80, 92,
and 134, Uniform Code of Military Justice, 10 USC §§ 880, 892,
and 934, respectively. The adjudged and approved sentence provides for
a dishonorable discharge, confinement for 4 years, total forfeitures, and
reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed
the findings and sentence in an unpublished opinion.
We granted review of the following
issues:


I
WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT
TO PROVE THAT APPELLANT COMMITTED INDECENT ASSAULTS AGAINST [PRIVATE FIRST
CLASS TH].

II
WHETHER THE MILITARY JUDGE ERRED BY
FAILING TO INSTRUCT ON THE MISTAKE OF FACT DEFENSE REGARDING CHARGE III,
SPECIFICATIONS 2 AND 3 (INDECENT ASSAULT).

III
WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT
TO PROVE THAT [U.S. ARMY COMBINED ARMS SUPPORT CENTER AND FORT LEE] REGULATION
600-27 WAS A LAWFUL GENERAL REGULATION.

IV
WHETHER THE RECORD OF TRIAL IS NOT
PROPERLY AUTHENTICATED.

V
WHETHER APPELLANT WAS PREJUDICED BY
THE APPEARANCE OF UNLAWFUL COMMAND INFLUENCE WHERE THE CONVENING AUTHORITY
WHO REFERRED THE CHARGES AND THE PANEL MEMBERS WHO SAT ON APPELLANTS COURT-MARTIAL
WERE EXPOSED TO PREJUDICIAL AND INFLAMMATORY PRETRIAL PUBLICITY CONCERNING
COMMENTS MADE BY THE SECRETARY OF DEFENSE, THE SECRETARY OF THE ARMY, THE
CHAIRMAN OF THE JOINT CHIEFS OF STAFF, THE CHIEF OF STAFF OF THE ARMY,
THE [U.S. ARMY TRAINING AND DOCTRINE COMMAND] COMMANDER, AND OTHER HIGH-RANKING
OFFICIALS WITHIN THE MILITARY CONCERNING THE CLASS OF CASES UNDER WHICH
APPELLANTS CASE FELL.

For the reasons set out below, we affirm
in part and reverse in part.

ISSUE I: SUFFICIENCY OF THE EVIDENCE
Facts
Appellant was an instructor at the
U.S. Army Combined Arms Support Center at Fort Lee, Virginia. All of the
offenses were based on his conduct with two female soldiers undergoing
Initial Entry Training, Private First Class (PFC) TH, and Private (PVT)
BD. Appellants conviction of the two indecent assaults was based entirely
on the testimony of PFC TH.
On September 13, 1996, appellant engaged
TH in conversation while he was on duty as Charge of Quarters (CQ). During
the conversation, appellant "started being flirtatious" with TH. Appellant
told TH that a movie would be shown in the day room after bed check, and
TH asked if she could come. He responded that it would be her responsibility
if she got in trouble, but it was her choice. The conversation ended with
appellant giving TH his pager number by writing it on a small piece of
paper in a lid of a soft drink bottle. TH entered the number in her electronic
data book.
TH returned to her room and then went
to the day room to watch the movie. Appellant left the day room and then
called TH to come out into the lobby outside the day room. He asked TH
to meet him in the operations room. TH went back to her barracks room,
told her "battle buddy"1
what was happening, climbed out her window into a breezeway, and waited
for appellant. When appellant arrived, he told TH to come into the operations
room and lock the door, and she complied. TH followed appellant into a
conference room. She asked why they were going into the conference room,
and appellant responded, "So nobody would see us."
In the conference room, appellant tried to
shut the door, but TH held it partially open. Appellant asked TH if she
was nervous and if she was afraid, and she responded "hell yeah" to each
question. Appellant told TH not to be nervous "because he was driving the
bus." He touched THs face, breasts, and buttocks, and he kissed her. TH
testified that she was scared, but she "wasnt really bothered by it."
Asked by trial counsel if she was "a willing participant," she responded,
"Yes."
Appellant then said something about checking
on the CQ and he left. TH sat on a table and waited for him to return.
Appellant returned and began giving TH a massage. He told TH to lie "belly
down" on the table. He straddled her and began massaging her. TH testified
that appellant started massaging her back and then "started going down
further," until he exposed her vagina by moving her shorts and panties
to the side.
TH testified that, at that point, she told
appellant she did not want to have sex with him. Appellant kept touching
her with his penis and telling her to relax, and she told him to stop.
Appellant stopped and left the room. TH sat up on the table and waited
for him to return. He returned and told TH that "there was a problem with
the bay guard or something," and "there was some situation that [she] had
to tend to." Appellant asked her to come back after she took care of the
problem, but she declined, saying she was tired and going to bed. She left
the conference room and returned to her room, climbing in through the window.
TH testified that she did not think much about
the incident in the conference room. Asked how she felt about appellant,
she said that she was interested in him at the time. She described her
feelings as "infatuation for a minute I guess." When trial counsel asked
her why she was not upset, she responded:



Because to me it was just the situation of
a guy and girl together and things happen, and a guy tries to see how far
he can get, but then it doesnt go anywhere. I really didnt consider it
an assault or rape or nothing like that. I didnt really pay much attention
to it.



On several days after the incident in the conference
room, TH called appellants pager, and he returned her calls. He usually
called her on the pay phones outside the day room.
About a week after the incident in the conference
room, TH and her battle buddy "ran into" appellant during a break in training.
Appellant told her to "ditch" her friend and meet him in a second-floor
latrine that was under repair. TH asked her battle buddy to wait for her
in a janitors closet outside the latrine. TH waited in the latrine for
20-30 minutes until appellant arrived. Appellant began criticizing TH for
the familiar way she talked to him, "because people might start thinking
something." TH testified that appellant touched her face and tried to kiss
her and touch her buttocks, but she "didnt want him touching [her]," and
she backed away. Appellant stopped his advances and left the latrine.
TH explained that her feelings about appellant
had changed between the incident in the conference room and the incident
in the latrine. She had talked to her battle buddy and to her brother,
who was in the military. Her brother told her that appellant could get
in trouble for "messing" with her because she was a trainee. In addition,
appellants divorce was not final. Therefore, TH "just left him alone."
On cross-examination, TH testified that the
situation with appellant was not something that she frequently thought
about. Asked why not, she responded, "Its not that important to me."
Recalled as a prosecution witness in rebuttal,
TH testified that she did not report her relationship with appellant to
anyone in her command. She did not know how her command found out about
it. She was summoned by her senior drill sergeant and questioned by her
commander, and she told them what had happened between appellant and her.
The defense theory was that PFC THs testimony
was "total lurid fiction," and that the incidents never happened. In closing
arguments, defense counsel argued that the government witnesses were not
truthful and could not be trusted. During a conference on proposed instructions,
the military judge stated, "[A]s I understand it, the defense is arguing
an all or nothing. On that basis, I dont intend to give instructions by
exceptions and substitutions." Defense counsel agreed. Neither the military
judge nor counsel for either side mentioned an instruction on mistake of
fact. Defense counsel did not request any additional instructions or object
to the instructions that were given.

Discussion
Legal sufficiency is a question of law that
we review de novo. 2 Steven Childress & Martha Davis, Federal
Standards of Review § 9.01 at 9-2 (3rd ed. 1999). The
legal test is "whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt." Jackson
v. Virginia, 443 U.S. 307, 319 (1979).
An element of assault is that the attempt,
offer, or "bodily harm" be done "with unlawful force or violence." The
act "must be done without legal justification or excuse and without the
lawful consent of the person affected." Para. 54c(1)(a), Part IV, Manual
for Courts-Martial, United States (1995 ed.).2
Based on this record, we conclude that no rational
trier of fact could have found beyond a reasonable doubt that TH did not
consent to the kissing and sexual touching that occurred in the conference
room. We agree with our dissenting colleagues that TH told appellant to
stop when he began progressing toward sexual intercourse. We disagree with
their conclusion that a rational factfinder could find that appellant went
beyond the sexual conduct to which TH consented. The dissenters assert
that TH told appellant "to stop touching her body improperly." ___ MJ (5).
In our view, the dissenters fail to adequately consider the context of
THs testimony, both in respect to the situation in which the words were
spoken and her conduct afterwards. TH did not tell appellant to stop touching
her; she told him that she did not want to have sexual intercourse with
him.
TH admitted that she knew appellant was being
"flirtatious." She invited herself to the movie in the day room, sneaked
out of her barracks room, and voluntarily followed him into the conference
room. She admitted that she was interested in and infatuated with appellant.
She admitted that she was "a willing participant." When appellant left
the room to check on the CQ, she waited for him to return. She cooperated
when he told her to lie "belly down" on the table, straddled her, and began
massaging her.
When appellant indicated, by touching her vagina
with his penis, that he wanted to have sexual intercourse, TH told him
to stop. Appellant tried to persuade her to go further, telling her to
relax, but she persisted in her refusal. Appellant then stopped and left
the room. TH waited in the room for him to return. She testified that she
"didnt consider it an assault or rape or nothing like that." Only after
appellant returned to the room did she decline further activity, saying
she was tired. Over the next few days, TH called appellants pager and
talked to him on the barracks telephone several times, and she voluntarily
met with him again in an abandoned latrine. She did not report the incident
until she was summoned to her commanders office and questioned about it.
Most telling was her testimony that the incident
in the conference room was "the situation of a guy and girl together and
things happen, and a guy tries to see how far he can get, but then it
doesnt go anywhere." In short, there was no unwanted sexual touching.
TH drew the line at sexual intercourse, and appellant did not cross the
line.
We also conclude that no rational trier of
fact could have found beyond a reasonable doubt that an indecent assault
occurred in the latrine. After the incident in the conference room, TH
continued her relationship with appellant, calling his pager and talking
to him on the barracks telephone. TH readily complied with his request
to meet him in the latrine, and she waited 20-30 minutes for him to arrive.
As soon as TH indicated that she no longer consented to appellants advances,
he stopped.
We hold that the Government failed to carry
its burden of proving lack of consent beyond a reasonable doubt. Accordingly,
we will set aside the findings of guilty of Specifications 2 and 3 of Charge
III. Our holding on the issue of consent does not affect the legal sufficiency
of appellants conviction of multiple violations of the regulation proscribing
inappropriate contact with trainees, nor does it condone his behavior.
While appellants conduct with a trainee fell short of an indecent assault,
his conviction of the regulatory violation clearly reflects that it was
unacceptable.
In light of our disposition of Issue I, we
need not address the merits of Issue II.

ISSUE III: THE REGULATION
Facts
At trial counsels request, with defense counsel
announcing "no objection," the military judge took judicial notice of several
paragraphs of U.S. Army Combined Arms Support Command and Fort Lee Regulation
600-27, and he read the pertinent paragraphs to the court members. The
regulation proscribes certain relationships between permanently assigned
military personnel and Initial Entry Training Soldiers, including "any
intimate or sexual relationship to include, but not limited to, dating,
kissing, embracing, holding hands, or caressing." The regulation recites
that it was promulgated "for the commander" of the U.S. Army Combined Arms
Support Center and Fort Lee, who was the general court-martial convening
authority for appellants case.
Appellant now asserts that the Government failed
to prove beyond a reasonable doubt that the commander personally issued
the regulation. Appellant also challenges the authority of the official
authenticating the regulation to do so. The Government argues that appellant
waived any objection to taking judicial notice of the regulation.

Discussion
Mil. R. Evid. 201, Manual, supra, authorizes
a military judge to take judicial notice of "adjudicative facts." Mil.
R. Evid. 201A authorizes judicial notice of domestic law. Mil. R. Evid.
201A(a) recognizes that domestic law is an adjudicative fact.
A general court-martial convening authority
is authorized to publish general orders and regulations. Para. 16c(1)(a)(i),
Part IV, Manual, supra. A general regulation is a proper subject
of judicial notice. See United States v. Wales, 31 MJ 301,
309 (CMA 1990). It is not necessary for the commander issuing a general
regulation to sign it personally. "So long as the decisional authority,
which is discretionary in nature, remains with the commander, . . . the
signature authority, which is delegated, is wholly ministerial in
nature." United States v. Bartell, 32 MJ 295, 296-97 (CMA 1991),
quoting United States v. Breault, 30 MJ 833, 837 (NMCMR 1990). An
official document, such as the regulation at issue in this case, is entitled
to a presumption of regularity if it appears regular on its face. See
United States v. Johnson, 10 USCMA 630, 636, 28 CMR 196, 202 (1959);
Breault, supra at 838.
Although appellant couches his assertion in
terms of legal sufficiency of the evidence, his real attack on the regulation
is founded in authentication. If the regulation is what it purports to
be, then the evidence is legally sufficient to prove the existence of a
general regulation prohibiting the acts allegedly committed by appellant.
See Jackson v. Virginia, supra. Appellant, however,
asserts that the evidence of record is insufficient to show that the regulation
is what it purports to be. This assertion is an evidentiary objection,
based on lack of proper authentication. See Mil. R. Evid. 901(a)
("The requirement of authentication or identification . . . is satisfied
by evidence sufficient to support a finding that the matter in question
is what its proponent claims."). Such an objection is waived if not timely
made. Mil. R. Evid. 103(a)(1).
Based on the foregoing principles, we hold
that any objections to judicial notice of the regulation or to the lack
of authentication were waived.

ISSUE IV: AUTHENTICATION OF THE RECORD
Facts
Colonel Larry R. Dean conducted the arraignment,
ruled on a number of motions, and authenticated pages 1-65 of the record
of trial. Colonel Alfred F. Arquilla conducted the remainder of the trial
but did not authenticate his portion of the record of trial. The authentication
page recites that he retired from active duty on May 26, 1997. The record
was authenticated on September 10, 1997 by Captain (CPT) John C. Lynch,
whose signature block identifies him as "trial counsel." For reasons not
clear from the record, the statement, "I have examined the record of trial
in the foregoing case," was inserted above the signature block for the
authenticating official. This statement usually appears above only the
defense counsels signature block. The "Errata Correction Sheets" attached
to the record reflect that CPT Lynch submitted four pages of corrections
to the court reporter on September 3, 1997. The record of trial identifies
CPT Gregory Bowman as trial counsel and CPT Lynch as the assistant trial
counsel.
The record reflects that both CPT Bowman and
CPT Lynch were qualified and certified under Article 27(b) and previously
sworn under Article 42(a), UCMJ, 10 USC §§ 827(b) and 842(a).
The record also reflects that CPT Bowman and CPT Lynch both participated
extensively in the trial. Both litigated the defense motions before entry
of pleas. CPT Bowman handled voir dire and challenges; the opening
statement; examination of Private BD, one of the victims, and three other
witnesses; closing arguments on the merits; sentencing evidence; and sentencing
argument. CPT Lynch examined TH on the merits and in rebuttal, as well
as four other prosecution witnesses. He represented the prosecution during
discussions on instructions.
Appellant has not challenged the accuracy of
the record. He asserts, however, that an assistant trial counsel is not
authorized to authenticate the record. He also challenges the form of the
authentication, arguing that the authenticating certificate is defective
because it recites only that CPT Lynch "examined" the record. He argues
that all post-trial proceedings are invalid because the record is not properly
authenticated. The Government argues (1) that an assistant trial counsel
is authorized to authenticate the record; (2) that even if it was incorrect
for an assistant trial counsel to authenticate the record, there has been
substantial compliance with Article 54, UCMJ, 10 USC § 854; and (3)
appellant has not been prejudiced.

Discussion
Article 38(a), UCMJ, 10 USC § 838(a),
provides:



The trial counsel of a general or special
court-martial shall prosecute in the name of the United States, and shall,
under the direction of the court, prepare the record of the proceedings.



Article 38(d) provides:



An assistant trial counsel of a general court-martial
may, under the direction of the trial counsel or when he is qualified to
be a trial counsel as required by [Article 27], perform any duty imposed
by law, regulation, or the custom of the service upon the trial counsel
of the court.



RCM 502, Manual, supra, implements Article
38, but it is somewhat more limiting. RCM 502(d)(5) provides that an assistant
trial counsel may perform any duty which trial counsel may perform when
acting "[u]nder the supervision of trial counsel."
Article 54(a) requires that the record of trial
be authenticated "by the signature of the military judge." If the military
judge cannot authenticate the record "by reason of his death, disability,
or absence, it shall be authenticated by the signature of the trial counsel
or by that of a member if the trial counsel is unable to authenticate it
by reasons of his death, disability, or absence."
RCM 1104 implements Article 54. Two amplifying
provisions are relevant to this case. RCM 1104(a)(1) provides, "A record
is authenticated by the signature of a person specified in this rule who
thereby declares that the record accurately reports the proceedings." RCM
1104(a)(2)(B) provides, "A person authorized to authenticate a record under
this subsection may authenticate the record only as to those proceedings
at which that person was present." The purpose of authentication is to
ensure the verity of the record. See United States v. Galloway,
2 USCMA 433, 435, 9 CMR 63, 65 (1953); United States v. Myers, 2
MJ 979, 980 (ACMR 1976).
We hold that the record is properly authenticated.
As a qualified and certified counsel under Article 27(b), CPT Lynch was
authorized by Article 38(d) to authenticate the record. If he was acting
"under the supervision of the trial counsel," or if he was detailed after
the trial to act as trial counsel for the purpose of preparing the record,
he was authorized by RCM 502(d)(5) to authenticate the record. There is
no evidence that he violated RCM 502(d)(5).
Even assuming arguendo that CPT Lynch
was not detailed after the trial to be the trial counsel and that he was
not acting under trial counsels supervision, this technical, regulatory
violation was harmless. There is no allegation and no evidence that the
record is not accurate. The record reflects that CPT Bowman and CPT Lynch
functioned as co-counsel, not as superior and subordinate. Each was statutorily
qualified to ensure the verity of the record. The purposes of Article 54
and RCM 1104 have been satisfied.
Finally, we reject appellants argument based
on the form of the authentication, for two reasons. First, RCM 1104 provides
that when a person signs the record as the authenticating official, that
person "thereby declares that the record accurately reports the proceedings."
Second, the four pages of corrections submitted by CPT Lynch to the court
reporter clearly demonstrate that he did more than merely examine the record.

ISSUE V: UNLAWFUL COMMAND INFLUENCE
Facts
On December 4, 1996, charges were preferred
against appellant. The investigation under Article 32, UCMJ, 10 USC §
832, was completed on January 17, 1997. The investigating officer found
the evidence insufficient to support a charge that appellant raped PVT
BD, but sufficient to support all the other charges. He recommended that
the case be referred to a special court-martial empowered to impose a bad-conduct
discharge. The investigating officer reported that defense counsel had
voiced "concern of the command climate here at Fort Lee because of the
public sex scandal that has been in the news lately at Aberdeen Proving
Ground." The investigating officer concluded his report by stating, "I
have felt no pressure from any individual or agency associated with The
Army, Fort Lee, the local chain of command or the media."
The special court-martial convening authority
dismissed the rape charge and forwarded the remaining charges, recommending
trial by general court-martial. The remaining charges were referred to
a general court-martial on January 31, 1997. The court-martial commenced
on March 31, 1997.
At the court-martial, the defense made three
motions arising from pretrial publicity: a motion to dismiss the charges
because of unlawful command influence; a motion for appropriate relief
based on unfair pretrial publicity; and a motion for a change of venue.
The defense supported its motions with a large compilation of newspaper
clippings, transcripts of news conferences, and television program transcripts,
in which senior military leadership commented on allegations of sexual
misconduct by drill sergeants at Aberdeen Proving Ground, Maryland.
Defense counsel did not assert that the referral
decision was the result of unlawful command influence, and he conceded
that no witnesses had expressed any reluctance to appear and testify, but
he expressed concern about the impact of comments by senior leadership
on court members. The military judge denied the defense motions.
During voir dire of the members, defense
counsel asked the members no questions about the impact of pretrial publicity
and public statements by senior military and civilian leadership. Trial
counsel asked the members if they could decide the case "based solely on
the evidence regardless of anything [they] may have heard or read in the
media." All members responded in the affirmative. Trial counsel then asked
the members if they would agree that "no outside pressures had influenced
[them]," and they again responded in the affirmative.
In closing arguments on findings, trial counsel
made no reference to the Armys senior leadership or to similar cases at
other installations. Instead, trial counsel focused exclusively on the
evidence in appellants case. Likewise, trial counsels sentencing argument
focused on appellants offenses.
Appellant now argues that the appearance of
unlawful command influence was raised by the "enormous pretrial publicity,
to include clear and succinct commentary by Armys military and civilian
senior leadership, dealing with the class of cases under which appellants
case fell." Final Brief at 37.
Appellant asserts that the appearance of unlawful
command influence was created by comments of the Secretary of Defense,
William Perry; the Secretary of the Army, Togo West; the Chairman of the
Joint Chiefs of Staff (JCS), General John Shalikashvili; the Army Chief
of Staff, General Dennis Reimer; the Commander of the U.S. Army Training
and Doctrine Command (TRADOC), General William Hartzog; and the Commander
of the U.S. Army Ordnance Center and School, Aberdeen Proving Ground, Maryland,
Major General Robert Shadley. The evidence recited in appellants brief
falls into four general categories: (1) Condemnation; (2) Investigation;
(3) Training; and (4) Disciplinary Action.
(1) Condemnation. At a Pentagon news
conference on November 7, 1996, the Secretary of the Army commented on
the Aberdeen allegations by saying that "sexual harassment is particularly
repugnant when it involves the abuse of authority." At the same news conference,
the Army Chief of Staff said that everyone is "deeply troubled by the allegations
of sexual misconduct and rape which occurred." He referred to the alleged
conduct as "unacceptable." He was "particularly troubled by the abuse of
power" that was alleged. He stated that he resented the allegations because
they "tarnished the Armys reputation."
On the same day, in a news conference at Fort
Monroe, Virginia, the TRADOC Commander commented on the Aberdeen cases
by saying, "America deserves better than this. Our soldiers deserve better
than this and our Army is better than this."
The Aberdeen Commander was interviewed by reporters
on the same day and was quoted as saying that the alleged conduct at Aberdeen
was the worst he had encountered in 30 years. He said, "What we want out
in front of the formation is a leader, not a lecher."
On a television news program on November 11,
1996, the JCS Chairman characterized the Aberdeen allegations as a "great,
great tragedy."
(2) Investigation. In a news interview
on November 7, 1996, the Aberdeen Commander said, "Were going to find
out what happened, why it happened, and take corrective action."
On a television news program on November 11,
1996, the JCS Chairman said that the services must "bring every complaint
to the surface, investigate it properly and set whats wrong right." He
said that the task is "to ensure that we find out exactly just how widespread
it is and bring to justice all those who should be brought to justice."
He promised to "get to the bottom of this."
On November 13, 1996, a network news program
reported that the Secretary of Defense "ordered the entire military, not
just the Army, to weed out sex offenders." During another news program
several days later, the Secretary of Defense promised that the military
would continue to be a leader in addressing sexual harassment problems.
On November 20, 1996, the Secretary of the
Army directed the Inspector General to "assess the responsibility and accountability
of the chain of command." On November 21, he created a "Senior Review Panel"
to "examine how Army leaders throughout the chain of command view and exercise
their responsibility to address sexual harassment, together with recommendations
for improvement." At a news conference on November 22, the Secretary of
the Army was asked if "heads would roll," and he responded, "I will not
give you a statement today that says were going to go out head hunting
. . . . We will go where the evidence takes us." On March 13, 1997, the
Secretary of the Army informed the House National Security Subcommittee
that the Army Inspector General would review the outcomes of the cases
at Aberdeen to "protect the rights of all."
(3) Training. At the Pentagon news conference
on November 7, 1996, the Army Chief of Staff said, "Something broke down."
During a television news interview on November 17, the Secretary of the
Army reported that the Army Chief of Staff "sent out a personal letter
to all general officers on active duty underscoring again the Armys position
on sexual harassment," and that the Army had followed the letter with "training
packages," including a video sent to "targeted commanders of the Army around
the world."
(4) Disciplinary Action. On November
7, the Aberdeen Commander was quoted by reporters as promising to "take
corrective action."
In a news interview on November 8, the Secretary
of the Army said, "If violations have occurred, we will hold the perpetrators
accountable." In another news interview on November 12, he said, "We will
expose them and we will eradicate them. This is about NCOs who violated
the law in the first instance . . . [W]hen we punish, the word goes out."
In a newspaper article on November 12, the
JCS Chairman was described as echoing "the outrage and commitment to seeking
justice done that have been expressed by other senior defense officials."
On the same day, a news article reported that the Army Chief of Staff vowed
that "the services leadership would move swiftly to ensure that those
responsible are brought to justice."
On November 13, 1996, a television news program
reported that an Army court-martial had "handed out a relatively light
sentence" in a case at Fort Leonard Wood, Missouri. The program also reported
the Secretary of Defenses order "to weed out sex offenders."
On January 10, 1997, a week before the Article
32 investigation was completed, a Fort Lee "spokesman" was quoted in a
local newspaper as saying that disciplinary action in appellants case
could range from a reprimand to a general court-martial, but that the "lower
end of the range is probably not going to be considered."

Discussion
This Court has recognized that "the appearance
of unlawful command influence is as devastating to the military justice
system as the actual manipulation of any given trial." United States
v. Allen, 33 MJ 209, 212 (CMA 1991). Appellant does not assert that
his trial was actually manipulated by senior military leadership. Instead,
he asserts that the widespread dissemination of pronouncements by senior
leadership created the appearance of unlawful command influence.
Where an assertion of unlawful command influence
is litigated at trial, we review the military judges findings of fact
under a clearly-erroneous standard, but we review de novo the legal
question whether those facts constitute unlawful command influence. United
States v. Wallace, 39 MJ 284, 286 (CMA 1994).
The initial burden is on the defense to "show
facts which, if true, constitute unlawful command influence." At trial,
the defense must show "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." On appellate review, the defense
must show that the proceedings appeared to be unfair and that the unlawful
command influence was the cause of the appearance of unfairness. The quantum
of evidence required to raise the issue is "some evidence," more than mere
allegation or speculation. United States v. Biagase, 50 MJ 143,
150 (1999).
There is no dispute about what was said by
senior military leaders. The dispute is whether what was said constitutes
actual or apparent unlawful command influence. We hold that appellant has
failed to meet his initial burden of showing facts which, if true, would
constitute actual or apparent unlawful command influence on the findings.
Unlike the situation in United States v.
Kirkpatrick, 33 MJ 132, 133 (CMA 1991), the views of the senior leadership
were not injected into appellants court-martial, by arguments of counsel
or otherwise. The evidence presented by appellant reflects comments of
the senior military and civilian leadership that appear to have been precipitated
by events at Aberdeen Proving Ground, not Fort Lee.
We need not and do not decide whether the comments
of senior military and civilian leaders might have injected actual or apparent
unlawful command influence into the courts-martial at Aberdeen. Our focus
is on appellants court-martial, not other cases. None of the comments
contained in this record suggested that appellant was guilty. Appellant
did not link the media publicity to his case. He did not present any evidence
that his court-martial appeared unfair as a result of the alleged unlawful
command influence. Accordingly, we hold that appellant failed to carry
his initial legal burden of showing that the "alleged unlawful command
influence ha[d] a logical connection to [his] court-martial, in terms of
its potential to cause unfairness in the proceedings." Biagase,
50 MJ at 150.
Our holding is limited to the findings. We
need not decide if there was actual or apparent unlawful command influence
on the sentence, because our resolution of Issue I requires that we set
aside the sentence.

DECISION
The decision of the United States Army Court
of Criminal Appeals affirming the findings of guilty of Specifications
2 and 3 of Charge III and the sentence is reversed. The findings of guilty
of Specifications 2 and 3 of Charge III are set aside and those specifications
are dismissed. In all other respects, the decision below is affirmed. The
record of trial is returned to the Judge Advocate General of the Army for
remand to the Court of Criminal Appeals. That court may reassess the sentence
or order a sentence rehearing.
FOOTNOTES:
1 A "battle
buddy" is a fellow trainee assigned as a constant companion during Initial
Entry Training.
2
The current version of the Manual for Courts-Martial is unchanged.


CRAWFORD, Chief Judge (concurring in part and
dissenting in part):
I concur in the result which the majority reaches
with respect to Issues III, IV, and V. Additionally, I conclude that appellant
has failed to carry his burden of showing any facts which, if true, demonstrate
any actual or apparent unlawful command influence affecting his sentence.
As I read the facts and THs testimony differently
than does the majority, I respectfully dissent from the reversal of appellants
conviction for indecently assaulting TH on two occasions. The majority
appears to equate TH with Ado Annie Carnes, the character in Rodgers and
Hammersteins hit musical Oklahoma, who sings "I Caint Say No!"1
Since I believe that "no" means "no," I, like country music singer Lorrie
Morgan, ask the majority, "What part of no dont you understand?" See
<http://www.countrycool.com>.

SUFFICIENCY OF THE EVIDENCE
Appellant was a 28-year-old married noncommissioned
officer standing six feet, four inches tall, weighing 210 pounds, with
over 10 years of service at the time of trial in May 1997. The victim,
TH, graduated from high school in Des Moines, Iowa, in May 1996. She went
to basic training the following month and arrived at Fort Lee, Virginia,
in September 1996, shortly before she was approached by appellant. At the
time of trial, TH was 18 years of age.
As aptly summarized by the trial counsel in
his opening statement: "This case is about a noncommissioned officer ...
who chose ... to commit crimes against the most vulnerable, the most defenseless,
and sadly, the most impressionable of all soldiers the Army has. He chose
to commit crimes against trainees."
While on CQ duty, appellant began flirting
with the victim, contrary to regulations and despite his status as a noncommissioned
officer, as well as the commanders representative after normal duty hours.
He informed TH that a movie would be shown in the company day room after
bed check if she was willing to risk getting caught. After bed check (midnight),
the victim left her room by a window and returned to the day room. Upon
returning, appellant told TH to go to the operations room and lock the
door. Once in the conference room (which adjoined the operations room),
appellant began to kiss TH and felt her face, buttocks, and breasts. TH
testified, "I was scared, but I wasnt really bothered by it." She
admitted that she was a willing participant at this juncture.
After a while, appellant left the conference
room, saying that he needed to go check on something at the CQ desk (a
post which he presumably abandoned while having his romantic interlude
with TH). When appellant returned, TH was sitting on a table in the room.
Appellant started giving her a massage and told her to "lay down on the
table, belly down." TH "did as he said." Appellant straddled the victim,
continuing to massage her back, until he eventually moved her shorts and
underwear, exposing her vagina. The record then discloses the following
colloquy:
Q. Did you say anything to him after he did
that?
A. I told him I didnt want to have sex with
him.
Q. What happened after that?
A. He continued to try to -- he kept on going.
I guess he thought maybe Id change my mind or something, but I kept telling
him to stop. I didnt want to have sex with him.
Q. What was he doing exactly? What was he doing
with his body?
A. He was talking to me, and I guess he was
trying to have sex with me. I was telling him to stop.
Q. Did you feel anything touching you?
A. I felt it touch me.
Q. Where did you feel it?
A. Where did I feel it?
Q. Yes. What part of your body?
A. On my vagina.
Q. What part of his body was touching your
vagina?
A. His penis.
Q. You said you told him to stop. Is that right?
A. Yes.
Q. What would he do after you told him this?
A. He would tell me to relax. I cant remember
his exact words, but basic things so I wouldnt be so nervous and scared.
Q. How many times did he put his penis against
your vagina?
A. I guess about maybe three to five times.
(Emphasis added.)
After being recalled to the stand pursuant
to a court members request to rehear her testimony, TH again testified
about the assault in the conference room:
Q. I didnt understand your answer. Could you
say that again?
A. He touched my vagina with his penis.
Q. Okay. Were you telling him anything during
this?
A. I had told him to stop.
Q. After you told him that, did he ever do
it again?
A. Yes, he did several times.
Q. About how many times did you tell him to
stop?
A. It was probably like three to five times
on an estimate.
The indecent assault in the conference room
occurred when appellant continued to rub his penis against the victims
vagina (three to five times) after being told to stop. As the majority
acknowledges, TH told appellant she did not want to have sex with him but
appellant "kept touching her with his penis and telling her to relax, and
she told him to stop." ___ MJ (4). The majority concludes the victim
drew the line at sexual intercourse and says appellants conduct "did not
cross that line." ___ MJ (10). I disagree with the majority that
the facts show, in the context of this encounter, that TH only expressed
an unwillingness to have sexual intercourse. TH not only told appellant
that she did not want to have sexual intercourse, but she told him pointedly
to stop touching her vagina with his penis. When he failed to do so, as
the evidence clearly shows, he engaged in indecently assaultive behavior.
When a woman tells a would-be paramour to stop touching her body improperly,
she draws the line! When the paramour persists in engaging in the same
conduct that has been explicitly rejected, the paramour has crossed that
line!
While I agree with the majority that TH failed
to manifest any displeasure with appellants amorous advances during the
first part of their encounter in the conference room, I disagree with the
conclusion that TH consented to appellants heavy petting with her after
his return from "checking on things at the CQ desk." When told "no," appellant
clearly took advantage of his rank, experience, and size to continue indecently
assaulting the victim after she realized that, for whatever reason, she
no longer wished to be romantically involved.
Appellant was also convicted of attempting
to kiss TH and attempting to touch her buttocks over her clothes. This
offense occurred in the barracks latrine approximately 3 days after TH
had said "no" to appellants advances in the conference room. Although,
as the majority points out, both TH and appellant had talked to one another
during the intervening 3 days, there was no evidence that TH had led appellant
to believe that she wished to have any type of romantic relationship with
him.
It was appellant who instructed TH to go to
a female latrine ("We talked a little while and he had told me to ditch
my friend and meet him up in -- it was a broken down or under repair, the
bathroom on the second floor. It was a female latrine."). For safety purposes,
TH took her roommate and battle buddy, PVT Perry, with her to this latrine
and asked Perry to remain in a janitors closet nearby. After waiting for
20 or 30 minutes, appellant arrived. The transcript reveals poignantly
what happened next:
Q. What happened once the accused arrived?
A. He was talking to me.
Q. Do you remember what kinds of things he
was saying?
A. He was getting on me about talking to him
at parade rest and things like respecting him as an NCO because people
might start thinking something. I cant remember everything he was saying,
but thats what I remember.
Q. Did the accused do anything to you while
you were in the latrine with him?
A. He had touched my face at first, he had
tried kissing me, and he had tried touching my buttocks, but I didnt want
him touching me, so I backed up.
The evidence shows that TH did nothing to lead
appellant to believe that she was interested in any type of romantic relationship.
In fact, she specifically stated that her feelings about appellant had
changed during the intervening period between the incident in the conference
room and her meeting him in the latrine. According to TH, her feelings
changed because she had talked with her roommate, Perry, about the situation;
had talked with her brother, who is in the military; and appellants supposed
divorce was not yet final. Although appellant committed no further advances
on TH after she stepped back from him in the latrine, his offer to kiss
her and touch her buttocks, without justification, constitutes an offense
under the Uniform Code of Military Justice.
Under the standard set forth in Jackson
v. Virginia, 443 U.S. 307, 319 (1979), I have no trouble concluding
that any rational trier of fact could have found that appellant was guilty
of all the elements of indecent assault in Charge III, Specification 2,
and that TH did not consent to appellants placing his penis against her
vagina. Accordingly, I would affirm appellants conviction of
so much of Charge III, Specification 2, as finds he indecently assaulted
PFC TH, a person not his wife, by placing his penis against her vagina,
with the intent to gratify his lust and sexual desires. Additionally, I
conclude that the evidence presented in support of Charge III, Specification
3 (the latrine incident) is sufficient to convict appellant of an assault
in Violation of Article 134, UCMJ, 10 USC § 934.

MISTAKE OF FACT INSTRUCTION
"Absent plain error, failure to object to instructions
as given or to request additional instructions forfeits the issue on appeal."
United States v. Guthrie, 53 MJ 103, 106 (2000), citing United
States v. Maxwell, 45 MJ 406, 426 (1996); RCM 920(f), Manual
for Courts-Martial, United States (1995 ed.). While, the failure to request
an affirmative defense instruction is not always dispositive of the issue,
no such instruction was required or even warranted in this case.

In his opening statement, defense counsel
said: Members of the panel, I want to make
one
thing clear, exactly what the defenses position
is in this case. What the evidence will show
is
that the allegations of [PFC TH] and [PVT
BD] are total lurid fiction. Theres no truth to them.... This is a case
about whether any of this happened
at all.

Appellant never testified. The defense theory
was that the two victims were liars and could not be trusted. As defense
counsel confirmed when affirmatively rejecting any instructions other than
those given, this was an "all or nothing" case. The sum of the defense
case-in-chief was a parade of witnesses who testified that the two victims
lacked credibility.
As I concluded in United States v. Lee,
52 MJ 51, 53 (1999) (Crawford, J., concurring in the result): "The key
to effective advocacy on behalf of ones client ... requires the advocate
to do many things ..., including making rational choices based on the unique
circumstances of each case...." See also United States
v. Pineda, No. 99-0915, ___ MJ ___ (2000) (Crawford, C.J., concurring
in the result). Had defense counsel requested a mistake of fact instruction
in this case and been refused, the military judge would have erred. Such
is not the case.
Defense counsels declination of any honest
and reasonable mistake of fact instruction was not the result of inattention
to the evidence presented or lack of knowledge of the law. One must look
at instructions in the context of the evidence presented during a court-martial.
The utter absence of any notion of a mistake of fact in the defenses case
leads me to the conclusion that defense counsel, presumed competent, affirmatively
waived this instruction. For counsel to have asked for such an instruction
would have undermined his theory of the case (nothing happened and that
TH was lying). See United States v. Taylor, 26 MJ 127, 131
(CMA 1988).
There has been no finding or even an allegation
before this Court that appellants trial defense counsel was incompetent
in selecting his theory of the case or in his trial of this court-martial
pursuant to that theory.
The burden of establishing plain error lies
with the appellant. United States v. Reist, 50 MJ 108, 110 (1999).
Unpersuaded that the military judge committed any error in failing to instruct
on the mistake of fact affirmative defense, let alone plain error, and
firmly convinced that the evidence is legally sufficient to sustain this
conviction, I would affirm the decision of the Army Court of Criminal Appeals.
FOOTNOTE:
"It aint so much a question
of not knowing what to do. I knowed whuts right and wrong since I been
ten. I heared a lot of stories and I reckon they are true about how girlsre
put upon by men. I know I mustnt fall into the pit, but when Im with
a feller, I fergit! I jist a girl who caint say no, Im in a turrible
fix. I always say "come on, les go," jist when I orta say nix!" (Original
Text) See http://www.mbnet.mb.ca/~dsparkes/oklahoma/lyrics.htm1.


SULLIVAN, Judge (dissenting):
I join Chief Judge Crawfords dissenting
opinion on Issues I and II. Issues III and IV, I would resolve against
appellant on the basis of this Courts decisions in United States v.
Jette, 25 MJ 16 (CMA 1987), and United States v. Townsend, 49
MJ 175, 179 (1998). As for Issue V, I see no prejudice in this case. See
United States v. Biagase, 50 MJ 143, 153 (1999) (Sullivan, J., concurring
in the result). I would affirm.


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