                                IN THE CASE OF


                         UNITED STATES, Appellee

                                         v.

               Christopher D. DEISHER, Airman Basic
                     U.S. Air Force, Appellant

                                  No. 04-0555
                           Crim. App. No. 35143

       United States Court of Appeals for the Armed Forces

                         Argued February 9, 2005

                         Decided August 19, 2005


EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and ERDMANN, J., joined. CRAWFORD and BAKER, JJ., each
filed a separate dissenting opinion.


                                     Counsel

For Appellant: Colonel Carlos L. McDade (argued); Major Andrew
S. Williams (on brief).


For Appellee: Major Steven R. Kaufman (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Major Lane A. Thurgood (on brief).



Military Judge:    Steven A. Hatfield



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Deisher, No. 04-0555/AF


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of officer members,

Appellant was convicted, pursuant to mixed pleas, of wrongful

use of a controlled substance (four specifications) and failure

to obey a lawful order, in violation of Articles 112a and 92,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 892.

He was sentenced to a bad-conduct discharge, confinement for ten

months, and forfeiture of all pay and allowances.      The convening

authority approved the sentence, and the United States Air Force

Court of Criminal Appeals affirmed the findings and sentence in

an unpublished opinion.

     The present appeal concerns the responsibility of a
                                                           *
military judge to determine the lawfulness of an order.        For the

reasons set forth below, we conclude that the military judge

erred by treating an issue of law, the legality of an order, as

a question of fact to be decided by the court-martial panel, and

that the error was prejudicial.



                           I. BACKGROUND

               A.   THE MOTION TO DISMISS THE CHARGE

     The pertinent charge alleged that Appellant failed to obey

a lawful order from a Security Forces Investigator, Staff

Sergeant (SSgt) Hazen, to have no contact with Airman (Amn)

Pennington.   According to the prosecution, the investigator


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United States v. Deisher, No. 04-0555/AF


issued the order in the aftermath of an altercation between

Appellant and Amn Pennington.

     In a pretrial session, defense counsel moved to dismiss the

charge on the ground that the communication from the

investigator to Appellant did not have the legal attributes of a

lawful order.   The motion was litigated on the basis of two

exhibits:    the memorandum prepared by SSgt Hazen a month after

the incident, and a summary of SSgt Hazen’s subsequent testimony

at the pretrial investigation hearing under Article 32, UCMJ, 10

U.S.C. § 832 (2000).   The exhibits reflect the investigator’s

testimony that he gave Appellant a no-contact order on more than

one occasion, although he could not recall the exact words

communicated to Appellant.   According to the investigator, a

senior airman was present on two occasions, and Appellant’s

first sergeant was present on one occasion.   The investigator

did not know whether Appellant understood the order in view of

his “mental state,” but he stated that Appellant acknowledged

the order.   The order had no expiration date, and it was not

reduced to writing.

     In support of the motion to dismiss the charge, defense

counsel argued that the investigator’s communication to

Appellant did not possess the attributes of a lawful order.

According to defense counsel:   (1) the communication lacked the

requisite clarity of a lawful order; (2) the communication was


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United States v. Deisher, No. 04-0555/AF


deficient because it did not establish a definite duration for

the alleged no-contact order; and (3) the alleged order exceeded

the investigator’s authority because it did not have the

approval of Appellant’s chain of command.   As authority for

these arguments, defense counsel cited a number of cases

addressing the contours of a lawful order, including United

States v. Hill, 49 M.J. 242 (C.A.A.F. 1998), and United States

v. Womack, 29 M.J. 88 (C.M.A. 1989).   The prosecution, in

response, argued that a lawful order had been issued, relying

primarily on the circumstances surrounding the alleged assault,

the need for a no-contact order in the aftermath of the

incident, and the role of a no-contact order in protecting the

victim of the alleged assault and the good order of the service.

     After discussing the substance of the order, the

prosecution stated that the issue of legality should be resolved

by the court-martial panel rather than the military judge.

According to the prosecution, “if the lawfulness of the order is

questioned, then that would be an issue -- it would be a fact

issue for a panel.”

     Defense counsel disagreed with the prosecution’s view that

the defense had raised factual questions that should be resolved

by the panel.   According to defense counsel, the responsibility

for addressing the issue was vested in the military judge, who

was required “to apply the facts to the law.”


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United States v. Deisher, No. 04-0555/AF


     When the military judge suggested that the defense had

raised a factual question -- “whether or not the order was even

given” -- defense counsel emphasized that the military judge had

identified only one of the pertinent questions.   Defense counsel

noted that the factual existence of an order constituted only

one aspect of the case, and that the motion to dismiss involved

broader questions of law, requiring the military judge to

address the uncertainty as to the content of the order, the

indefinite duration of the order, and the issue of whether the

alleged order was approved by Appellant’s command.

     The military judge took the issue under advisement.

Subsequently, he issued a written ruling rejecting the defense

motion to dismiss the charge on the following grounds:

          Based on the proffered facts, the court
          cannot find as a matter of law the alleged
          order was unlawful. The defense motion is
          essentially an argument that the evidence is
          insufficient to establish either that an
          order was given or that it was lawful.
          These are questions of fact for the members
          to determine.


                      B. TRIAL PROCEEDINGS

     During trial on the merits, the prosecution relied

primarily on the testimony of the investigator, SSgt Hazen, to

prove that the charged order had been communicated to Appellant.

SSgt Hazen testified that he was one of several persons

investigating the altercation between Appellant and Amn


                                5
United States v. Deisher, No. 04-0555/AF


Pennington.    Based upon witness statements indicating that

Appellant might have used Valium without a prescription, SSgt

Hazen and another investigator transported Appellant to the

medical clinic for a drug test.

     SSgt Hazen testified that the no-contact order was first

issued to Appellant while they were in the car, accompanied by

Amn Lewis, who was also assigned to the investigation.      SSgt

Hazen said that he could not recall the specific words of the

order, noting that “we didn’t talk very much, especially on the

way there.    It was just him worried about what’s going to happen

to him.”    SSgt Hazen added that he told Appellant: “Let’s get

this behind you.    Don’t worry about it.   Just don’t have any

more contact with Pennington.    Don’t get yourself in any more

trouble.”    According to SSgt Hazen, Appellant responded by

saying, “I know, I know.”

     SSgt Hazen testified that he issued a second order after

they arrived at the clinic:

             ATC [Assistant Trial Counsel]: . . . At any
             point during the time you were at the
             [clinic] with the accused, was his first
             sergeant there?

             WIT [SSgt Hazen]: Yes, sir, he was.   He met
             us there. . . .

             Q. Did you give the accused any orders while
             you were there?

             A. Yes, sir. In front of his first sergeant
             [Senior Master Sergeant Speer], I gave him a


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United States v. Deisher, No. 04-0555/AF


          lawful order to have no contact with Airman
          Pennington.

SSgt Hazen added that both Amn Lewis and Senior Master Sergeant

Speer heard what he said to Appellant.

     The testimony then turned to the details of the

communication:

          Q. And how is it that you gave the order?

          A. Ninety-nine percent of the time the
          orders are always the same and it’s, “I’m
          give [sic] you a lawful order to have no
          contact with the victim.” At this time, it
          was Airman Pennington. “And if he does
          approach you, you need to contact somebody
          in your chain of command or contact us, and
          we’ll take care of it right away.”

          Q. Now, in this particular case, I know that
          you said, “This is how we do it,” but how
          was it done in this case?

          A. The specifics, I’m -- that’s what I’m
          going to say. I said that -- again, it was
          awhile back and I’m almost positive that’s
          what I said.

SSgt Hazen added that Appellant acknowledged this communication

by nodding his head.

     According to SSgt Hazen, he issued a third no-contact order

while he and Amn Lewis drove Appellant back to the base from the

clinic:

          [A]t that time after the test and everything
          on the way back, he was a little bit more
          talkative, a little bit more concerned. And
          I talked to him a little bit more about
          different things other than the case and got
          to know him a little bit better. But from


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United States v. Deisher, No. 04-0555/AF


          that, that’s when I said, “Well, stay out of
          trouble. You seem to be doing okay,
          everything else you’re doing.” I didn’t
          know much about the OSI case [involving
          separate charges], but this was just --
          after -- I said, “You could still make a
          career out of this. Let’s not screw up any
          more, and don’t have any more contact with
          Pennington.”

Although he could not remember the exact terms, SSgt Hazen said

that Appellant acknowledged the third communication: “[I]t was

something to the effect, ‘I know.    I know.   I’m going to stay

out of trouble.   I’m going to be okay,’ and stuff.”

     Defense counsel began cross-examination by asking SSgt

Hazen if he remembered the terms of the order.    SSgt Hazen

answered, “No, ma’am.”   In response to further questioning, SSgt

Hazen noted that the report of the investigation did not mention

that a no-contact order had been issued, and that the order had

not been documented until a month after the incident.    The

defense counsel then turned to the content of the

communications:

          [Defense counsel]: Your communication with
          respect to [Appellant] and Airman Pennington
          did not specify any duration under which
          your order was in place, did it?

          A. No, ma’am, it didn’t.

          Q. And you can’t provide the court or the
          members any more information about the
          language that you used in communicating with
          [Appellant].




                                 8
United States v. Deisher, No. 04-0555/AF


          A. The only one I feel comfortable under
          oath with is the statement that I gave in
          front of the emergency room.

          Q. And you don’t recall the words of that
          statement to [Appellant].

          A: I do feel comfortable saying that what I
          -- I expressed to [trial counsel], that
          that’s what I said, minus -- maybe changing
          a word or two. But that’s -- under oath, I
          will say that I said that.

          Q: So you do have a recollection of the
          words used or you don’t.

          A: Again, exact words --

          Q: Do you have a recollection today of the
          words used?

          A: Yes, ma’am, and that’s what I told [trial
          counsel].

          Q: And the gist of that was not to approach
          Airman Pennington, correct?

          A. Yes, ma’am.

          . . . .

          Q. You never informed [Appellant] that he
          could be criminally charged with violating
          the direction that you gave him on that day,
          correct?

          A. Again, I don’t think I did.   I might
          have, but I don’t think I did.

     SSgt Hazen also acknowledged that he never spoke to

Appellant’s commander about the no-contact order.    During

redirect examination, the prosecution returned to the content of

the communication:



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United States v. Deisher, No. 04-0555/AF


            Q: Investigator Hazen, to the best of your
            recollection, what were the words that were
            communicated from you to the accused in
            front of his first sergeant?

            A. I started with, “In front of your first
            sergeant, I’m giving you a lawful order to
            have no contact with Airman Pennington; and
            if he approaches you, let somebody in your
            chain of command know or let me know and
            we’ll take care of it as soon as possible.”

In response to questions from members of the panel, SSgt Hazen

said that he issued no-contact orders about once a week in his

capacity as an investigator and that they were never issued in

written form.   He also said that in the present case, he issued

no-contact orders to both Appellant and Amn Pennington on the

same day.

     Without objection from defense counsel, the military judge

instructed the members on the four elements of violating a

lawful order:

            [O]ne, that a member of the armed forces;
            namely, Staff Sergeant Scott Hazen, issued a
            certain lawful order to have no contact with
            A1C [Airman First Class] Steven Pennington;
            two, that the accused had knowledge of the
            order; three, that the accused had a duty to
            obey the order; and four, that at Peterson
            Air Force Base, on or about 4 August 2001,
            the accused failed to obey the order.

            An order, to be lawful, must relate to
            specific military duty and be one that the
            member of the armed forces is authorized to
            give. An order is lawful if it is
            reasonably necessary to safeguard and
            protect the morale, discipline, and
            usefulness of the members of a command and


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United States v. Deisher, No. 04-0555/AF


           is directly connected with the maintenance
           of good order in the services. It is
           illegal if it is unrelated to military duty,
           its sole purpose is to accomplish some
           private end, it is arbitrary and
           unreasonable, or it is given for the sole
           purpose of increasing the penalty for an
           offense that it is expected the accused may
           commit. You may find the accused guilty of
           failing to obey a lawful order only if you
           are satisfied beyond a reasonable doubt that
           the order was lawful.


                    II. JUDICIAL RESPONSIBILITY
              TO DETERMINE THE LAWFULNESS OF AN ORDER

     When a servicemember is charged with violation of a lawful

order, the legality of the order is an issue of law that must be

decided by the military judge, not the court-martial panel.

Article 51(b), UCMJ, 10 U.S.C. § 851(b) (2000); United States v.

New, 55 M.J. 95, 105 (C.A.A.F. 2001).   We employ a de novo

standard of review to assess the rulings of the military judge

concerning the lawfulness of the charged order, including his

decision to submit the issue of lawfulness to the court-martial

panel.   New, 55 M.J. at 100, 106.

     An order is presumed to be lawful, and the accused bears

the burden of rebutting the presumption.    See United States v.

Hughey, 46 M.J. 152, 154 (C.A.A.F. 1997).    The essential

attributes of a lawful order include:   (1) issuance by competent

authority -- a person authorized by applicable law to give such

an order; (2) communication of words that express a specific



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United States v. Deisher, No. 04-0555/AF


mandate to do or not do a specific act; and (3) relationship of

the mandate to a military duty.    See id. at 100-01; Manual for

Courts-Martial, United States (2002 ed.) (MCM), pt. IV, ¶ 14.c.

(2)(a).    In addition, the accused may challenge an order on the

grounds that it would require the recipient to perform an

illegal act or that it conflicts with that person’s statutory or

constitutional rights.    See MCM, pt. IV, ¶ 14.c. (2)(a)(i),

(iv).

        The lawfulness of an order, like other issues of law, may

involve questions of fact that must be addressed by the military

judge for the limited purpose of resolving the issue of law.

See Rule for Courts-Martial (R.C.M.) 905(d).    The consideration

of such factual matters by the military judge in the course of

addressing an issue of law is distinct from, and does not

preempt, the responsibility of a court-martial panel to address

factual matters pertinent to the elements of an offense in the

course of returning findings on the issue of guilt or innocence.

Compare, e.g., R.C.M. 905(c)(1) (burden of proof when a military

judge must resolve a factual issue in the course of deciding a

motion), with R.C.M. 920 (instructions to a court-martial panel

on findings).    Cf. R.C.M. 916(d) discussion (addressing the

responsibility for determining factual aspects of lawfulness in

the context of the defense of obedience to orders).    In cases

where direct, local orders are given, the fact-laden nature of


                                  12
United States v. Deisher, No. 04-0555/AF


those cases makes it particularly important that the military

judge identify factual issues that the members must resolve.    In

the present case, for example, the military judge recognized

that the factual issue of whether an order was given -- that is,

whether certain words were communicated to the accused --

involved proof of an element that ultimately would have to be

resolved by the members.

     When the defense moves to dismiss a charge on the grounds

that the alleged order was not lawful, the military judge must

determine whether there is an adequate factual basis for the

allegation that the order was lawful.   In the course of acting

on such a motion, if the military judge rules that a specific

set of words would constitute a lawful order under a specific

set of circumstances, that is a preliminary ruling.   The

military judge’s ruling does not relieve the prosecution of the

responsibility during its case-in-chief of proving beyond a

reasonable doubt the facts necessary to establish the elements

of the offense.   See, e.g., MCM, pt. IV, ¶ 16.b. (2).

     Our decision in New -- holding that the lawfulness of an

order is not an element, but is an issue of law to be resolved

by the military judge, not members -- was released approximately

six months before Appellant’s court-martial.   In the present

case, the military judge erred in ruling on the motion to

dismiss by treating both the issue of lawfulness and the


                                13
United States v. Deisher, No. 04-0555/AF


predicate factual aspects of the lawfulness issue as matters to

be resolved by the members.   The error is reflected both in his

ruling on the motion and in his subsequent submission of the

issue of lawfulness to the members.

     The Government contends that Appellant was not harmed

because the submission of the issue of lawfulness to the members

after the military judge ruled on the lawfulness issue

gratuitously provided Appellant with a second chance to prevail

on the issue.    The Government suggests that the military judge

relied on the presumption of lawfulness in denying the motion to

dismiss, and then simply provided the defense with a second bite

at the apple when he submitted the issue of lawfulness to the

members.

     The Government’s approach might have some merit in a case

where the issue of lawfulness could be addressed without

resolution of significant underlying factual disputes.   This is

not such a case.   Appellant vigorously challenged the issue of

lawfulness by emphasizing specific predicate factual questions,

such as the uncertainty as to the terms and conditions of the

alleged order.   The military judge’s determination that these

questions raised by the Appellant were factual matters to be

decided by the panel and his subsequent submission of the

lawfulness issue to the panel indicate that the military judge




                                 14
United States v. Deisher, No. 04-0555/AF


did not resolve the predicate factual questions before

concluding that the charged order was lawful.

     Accordingly, we cannot be confident that the issue of

lawfulness was resolved by the military judge, as required by

New, prior to submission of the issue to the panel.   Because

there is a distinct possibility that the military judge did not

resolve the predicate factual questions necessary to determine

the issue of law, his ruling on the lawfulness issue is

critically undermined.   In acting on the defense motion to

dismiss, the military judge’s ruling that “the court cannot find

as a matter of law the alleged order was unlawful” is far from

an affirmative judicial determination that the order was lawful.

In this context, there is a significant likelihood that the

issue of lawfulness was resolved only by the panel -- a body not

trained in the law or empowered to rule on that issue.    These

circumstances leave us in grave doubt as to the validity of the

findings.   See Kotteakos v. United States, 328 U.S. 750, 765

(1946).

     The same considerations lead us to reject the Government’s

contention that Appellant waived the issue by not objecting to

the pertinent instructions of the military judge on findings.

The defense did not acquiesce in the military judge’s approach

to the issue of lawfulness.   As noted above, the defense

litigated the motion to dismiss by specifically asking the


                                15
United States v. Deisher, No. 04-0555/AF


military judge to address the factual matters pertinent to the

lawfulness of the order.   The military judge indicated that he

would not do so and would instead submit the issue to the

members.    Once the military judge rejected the defense position

and announced that he would submit the issue of lawfulness to

the members, there was no need for the defense to repeat its

concerns to preserve the issue.

     Because we review the issue of lawfulness under a de novo

standard, we could bypass the military judge’s approach and

decide on the basis of the record before us whether the order

was lawful.   In view of the significant factual aspects of the

issue in the present case, however, we decline to do so.     Under

the circumstances of this case, particularly the multiple

versions of the order given in varying contexts, the issue of

lawfulness should be decided in the first instance by a military

judge who takes testimony, observes the witnesses, and weighs

the evidence in the course of resolving any factual questions

that are predicates to the decision.



                           III. CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed as to Additional Charge I, its

specification, and the sentence, but is affirmed in all other

respects.   The findings as to Additional Charge I and its


                                  16
United States v. Deisher, No. 04-0555/AF


specification, as well as the sentence, are set aside.    The

record of trial is returned to the Judge Advocate General of the

Air Force for remand to a convening authority for a rehearing on

Additional Charge I, its specification, and the sentence.   If a

rehearing on Additional Charge I and its specification is deemed

impracticable, the specification may be dismissed and a

rehearing on the sentence alone will be conducted.   Thereafter,

Articles 66 and 67, UCMJ, 10 U.S.C. §§ 866, 867 (2000), will

apply.


FOOTNOTE:
*
  Upon Appellant’s petition, our Court specified the following
issue: “Whether plain error occurred under United States v. New,
55 M.J. 95 (C.A.A.F. 2001), when the military judge, contrary to
the defense request, submitted the question of the lawfulness of
the disobeyed order to the members.”




                               17
United States v. Deisher, No. 04-0555/AF


     CRAWFORD, Judge (dissenting):

     It is unreasonable to hold that there was prejudicial error

in this case.    The military judge implicitly found by a

preponderance of the evidence that the order was lawful and then

submitted those elements under appropriate instructions to the

court members.   The members found that the prosecution had

proved all these elements beyond a reasonable doubt.   Thus,

Appellant received “two bites of the apple” on the question of

the lawfulness of the order -- with the second bite imposing a

higher burden of proof on the prosecution when it presented its

case to the members.    Surely these procedures inured to the

benefit of Appellant.   A finding of guilty is not rendered any

less reliable when its lawfulness is determined beyond a

reasonable doubt.   Cf. Neder v. United States, 527 U.S. 1, 17

(1999) (determining that “where a reviewing court concludes

beyond a reasonable doubt that [an] omitted element [in a jury

instruction] was uncontested and supported by overwhelming

evidence, such that the jury verdict would have been the same

absent the error, the erroneous instruction is properly found to

be harmless”).   Because no sound reason has been put forth to

establish the unreliability of the findings, I respectfully

dissent.
United States v. Deisher, No. 04-0555/AF


     BAKER, Judge (dissenting):

     I concur in the majority’s analytic framework for

addressing the lawfulness of an order.   As this Court held

in United States v. New, 55 M.J. 95 (C.A.A.F. 2001),

whether an order is lawful is a question of law for the

military judge -- and not the members -- to determine.

Before sending a change alleging a violation of a lawful

order to the members, a military judge must necessarily

make threshold contingent factual conclusions to determine

whether the order at issue is lawful.

     However, while I agree with the Court’s analysis, I

respectfully dissent from the Court’s decision reversing

Additional Charge I rather than resolving the underlying

question of lawfulness at this time.    In my view, we can

and should decide now whether the order Appellant received

was lawful.   The facts are clear and settled with respect

to at least the second instance in which the order was

issued.   In applying the law to the relevant facts now, we

can provide clarity to the law, serve both the Government’s

and Appellant’s interest in finality, and serve the

interest of judicial economy.

     As the majority acknowledges, “[b]ecause we review the

issue of lawfulness under a de novo standard, we could

bypass the military judge’s approach and decide on the
United States v. Deisher, No. 04-0555/AF


basis of the record before us whether the order was

lawful.”   Nonetheless, “[i]n view of the significant

factual aspects of the issue” the Court declines to do so.

The Court identifies as the basis for this statement “the

multiple versions of the order given in varying contexts.”

However, no other “factual aspects” requiring further

development are identified that would preclude this Court

from deciding the legal question at this time.      And

particularly, no factual issues are identified with respect

to the second issuance of the order.

     To start, there is nothing factually unclear about the

second issuance of the order.       Staff Sergeant (SSgt) Hazen

testified that he told Appellant, “In front of your first

sergeant, I'm giving you a lawful order to have no contact

with Airman [(Amn)] Pennington; and if he approaches you,

let somebody in your chain of command know or let me know

and we'll take care of it as soon as possible.”       More

specifically, SSgt Hazen testified that he issued the order

to Appellant while standing outside the entrance to the

emergency room.   In addition, the following relevant

testimony is in the record and quoted in part in the lead

opinion.

     ATC [Assistant Trial Counsel]: . . . At any
     point during the time you were at the




                                2
United States v. Deisher, No. 04-0555/AF


     [clinic] with the accused, was his first
     sergeant there?

     WIT [SSgt Hazen]: Yes, sir, he was.   He met
     us there. . . .

     Q. Did you give the accused any orders while
     you were there?

     A. Yes, sir. In front of his first sergeant
     [Senior Master Sergeant Speer], I gave him a
     lawful order to have no contact with Airman
     Pennington.

     . . . .

     A. All right. Now, I don’t know if I got this before
     or not, but was anybody there when you gave this
     order?

     Q. Yes, sir. Airman Lewis, who rode with me, was
     there. Sergeant Pecqueur also drove separate. She
     was there; and the first sergeant, at the time Senior
     Speer, he was there also. I gave the order in front
     of Senior Speer, and I’m not sure if Sergeant Pecqueur
     heard it. But Ariman Lewis did hear it.

     Q. And how is it that you gave the order?

     A. Ninety-nine percent of the time the
     orders are always the same and it’s, “I’m
     [giving] you a lawful order to have no
     contact with the victim.” At this time, it
     was Airman Pennington. “And if he does
     approach you, you need to contact somebody
     in your chain of command or contact us, and
     we’ll take care of it right away.”

     Q. Now, in this particular case, I know that
     you said, “This is how we do it,” but how
     was it done in this case?

     A. The specifics, I’m -- that’s what I’m
     going to say. I said that -- again, it was
     awhile back and I’m almost positive that’s
     what I said.




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United States v. Deisher, No. 04-0555/AF


     . . . .

     Q. . . . did the accused acknowledge your order?

     A. Yes, sir. I believe he just nodded his head.
     Throughout -– this is based on in front of the
     emergency room; but in the vehicle, he said, “I know,
     I know” to me . . . .

Emphasis added.

Subsequent examination of SSgt Hazen by defense counsel

proceeded as follows:

     Q. And you can’t provide the court or the
     members any more information about the
     language that you used in communicating with
     Airman Basic Deisher.

     A. The only one I feel comfortable under
     oath with is the statement that I gave in
     front of the emergency room.

     Q. And you don’t recall the words of that
     statement to [Appellant].

     A: I do feel comfortable saying that what I
     -- I expressed to [trial counsel], that
     that’s what I said, minus -- maybe changing
     a word or two. But that’s -- under oath, I
     will say that I said that.


In response to questions from members of the panel, SSgt

Hazen said that he issued no-contact orders about once a

week in his capacity as an investigator and that they were

never issued in written form.       He also said that in the

present case, he issued no-contact orders to both Appellant

and Amn Pennington on the same day.




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United States v. Deisher, No. 04-0555/AF


     In general, military judges are better situated to

rule in the first instance on questions of lawfulness than

appellate judges for the obvious reasons that they may ask

questions of witnesses, observe their demeanor, and weigh

their credibility.   However, in this case, the Court does

not identify any outstanding factual questions necessary to

resolve the lawfulness of this order.   Moreover, although

there might arguably remain factual questions regarding the

first and third occasions on which SSgt Hazen gave the no-

contact order, in all three cases the substance was

consistent.   So this is not a situation where the order at

the clinic was contradicted or clouded by the other orders.

The dispute is over the lawfulness of the order and whether

or not as a matter of factual and legal sufficiency,

Appellant heard and understood the order at least once.

     Further, I do not see how the facts are going to be

developed further with respect to the second rendering of

the order.    The key witness, the investigator, testified in

detail, and was very careful with his words noting that he

was under oath and recalling where he gave the order and

who was present.   He acknowledged that he could not

remember the exact words used each time he gave the order.

And, he stated that in accordance with his practice he did

not record the order in writing until after he was asked to


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United States v. Deisher, No. 04-0555/AF


do so by the trial counsel in anticipation of prosecution.

Nonetheless, with respect to the second order, SSgt Hazen

stated that in ninety-nine percent of the cases in which he

gives a no-contact order he uses the same language and that

under oath he was comfortable saying that he was almost

positive he used the same language in this instance.

     Finally, this is not a case where the error deprived

Appellant of presenting his strongest argument to the

members or the military judge.   The military judge was on

the right track when he concluded that:

     [B]ased on the proffered facts, the court cannot
     find as a matter of law the alleged order was
     unlawful. The defense motion is essentially an
     argument that the evidence is insufficient to
     establish either that an order was given or that
     it was lawful. These are questions of fact for
     the members to determine.

However, in using the sort of reverse negative that lawyers

specially favor, we cannot be sure whether the military

judge found the order lawful, stating that he could not

find that the order“was unlawful”.   Similarly, we cannot

know whether “cannot find . . . the alleged order

wasunlawful” means something else.

     Further, the military judge appears to have referred

not only the elemental facts to the members to determine,

but also appears to have referred the question of

lawfulness to the members as well.   In light of New, this


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United States v. Deisher, No. 04-0555/AF


amounted to plain error.   But rather than Appellant being

prejudiced here, he appears to have benefited from an

opportunity for the members, albeit erroneously, as well as

the military judge, to evaluate the lawfulness of the order

he received.

     In deferring the issue, the majority’s view is

contradictory and effectively sets apart the issue of

lawfulness as a distinct analytic question, unique unto

itself.    On the one hand, the suggestion is that the

question is not really a legal question because this Court

feels it cannot resolve it even with a record as plain as

the one before us.   On the other hand, neither is it a

factual question because the Court has found legal error in

the military judge’s submission of the question to the

members.   Thus, the majority converts what was a

straightforward legal issue into a jurisprudential hybrid.

I do not see the need for this analytic innovation, which

may produce uncertainty regarding the enforcement of the

most elemental of military traditions:   obedience to a

lawful order.   Readers of the majority’s opinion might well

wonder whether the Court finds the question of lawfulness

complex.   They may wonder what additional facts are

required to address lawfulness.    Or, it may seem uncertain

whether an order must be issued three times in order to be


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United States v. Deisher, No. 04-0555/AF


lawful one time.   Is there something more a military

policeman should do to ensure he or she has conveyed a

lawful order?   Is there something more an infantry platoon

sergeant should do?   For the reasons stated, the parties

and the law would be better served were we to answer the

question before the Court at this time.    Therefore, I

respectfully dissent.




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