                                  IN THE CASE OF


                           UNITED STATES, Appellee

                                           v.

                   Delmar G. SIMPSON, Staff Sergeant
                          U.S. Army, Appellant

                                    No. 02-0001
                            Crim. App. No. 9700775

       United States Court of Appeals for the Armed Forces

                          Argued December 11, 2002

                             Decided July 1, 2003

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, BAKER and ERDMANN, JJ., joined.


                                       Counsel

For Appellant: Frank J. Spinner, Esq. (argued); Colonel Adele
    H. Odegard, Major Imogene M. Jamison, and Captain Eilin J.
    Chiang (on brief); Captain Stephanie L. Haines.


For Appellee: Captain Abraham F. Carpio (argued); Lieutenant
    Colonel Margaret B. Baines, Lieutenant Colonel Lauren B.
    Leeker, Major Mark L. Johnson, and Captain Tami L. Dillahunt
    (on brief); Major Paul T. Cygnarowicz.



Military Judges:      Joseph Neurauter, Linda K. Webster, and Paul Johnston


        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Simpson, No. 02-0001/AR


   Judge EFFRON delivered the opinion of the Court.

   A general court-martial composed of officer and enlisted

members convicted Appellant, pursuant to his pleas, of failure

to obey a lawful general order (10 specifications) in violation

of Article 92, Uniform Code of Military Justice [hereinafter

UCMJ], 10 U.S.C. § 892 (2000).   Contrary to his pleas, Appellant

was convicted of failure to obey a lawful general order (3

specifications), cruelty and maltreatment of a subordinate (2

specifications), rape (18 specifications), forcible sodomy (1

specification), consensual sodomy (2 specifications), assault

consummated by a battery (1 specification), indecent assault (12

specifications), indecent acts (1 specification) and

communicating a threat (2 specifications), in violation of

Articles 92, 93, 120, 125, 128, and 134, UCMJ, 10 U.S.C. §§ 892,

893, 920, 925, 928, 934 (2000), respectively.    He was sentenced

to a dishonorable discharge, confinement for 25 years, total

forfeitures, and reduction to Private (E-1).    The convening

authority approved the adjudged sentence and credited Appellant

with 413 days against his sentence to confinement.

   The Army Court of Criminal Appeals, in an opinion containing

an extensive description of the factual and legal background,

set aside and dismissed three of the 12 indecent assault

specifications and one of the 18 rape specifications, affirmed a




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United States v. Simpson, No. 02-0001/AR


lesser included finding of failure to obey a lawful general

order (1 specification), modified one of the indecent assault

specifications and one of the rape specifications, affirmed the

balance of the findings, reduced the confinement to 22 years,

and approved the balance of the sentence.    United States v.

Simpson, 55 M.J. 674 (Army Ct. Crim. App. 2001).

    On Appellant’s petition, we granted review of the following

issues:

            I. WHETHER THE MILITARY JUDGE GAVE AN
            ERRONEOUS INSTRUCTION REGARDING
            “CONSTRUCTIVE FORCE - ABUSE OF MILITARY
            POWER” WITH RESPECT TO THE RAPE AND FORCIBLE
            SODOMY SPECIFICATIONS WHICH SUBSTANTIALLY
            PREJUDICED APPELLANT'S CASE.

            II. WHETHER APPELLANT'S DUE PROCESS RIGHTS
            UNDER THE FIFTH AMENDMENT OF THE UNITED
            STATES CONSTITUTION WERE VIOLATED DUE TO
            UNLAWFUL COMMAND INFLUENCE AND UNFAIR
            PRETRIAL PUBLICITY.


    We shall first discuss the granted issue involving unfair

pretrial publicity and unlawful command influence, and then turn

to the granted issue regarding instructions on constructive

force.    For the reasons set forth below, we affirm the decision

of the Court of Criminal Appeals.




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United States v. Simpson, No. 02-0001/AR


   I. UNFAIR PRETRIAL PUBLICITY AND UNLAWFUL COMMAND INFLUENCE


                            A. BACKGROUND

     The Criminal Investigation Command (CID) opened an

investigation into trainee abuse allegations against Appellant

and others in September 1996.    The allegations with respect to

Appellant concerned the period between November 1994 and

September 1996 when Appellant was assigned to the Ordnance

Center and School (School), Aberdeen Proving Grounds, Maryland.

Although the School is located at Aberdeen, it is under the

immediate command of the Training and Doctrine Command (TRADOC),

Fort Monroe, Virginia.

       During the initial phase of the investigation, Appellant

remained assigned to the School, which was commanded by Major

General (MG) Shadley.    MG Shadley, who was not a convening

authority, exercised general command and control functions over

the School.   In response to the scope of the allegations by

trainees against Appellant and others, MG Shadley organized a

“Command Response Team” to monitor the investigation, determine

whether there were systemic problems, and take preventive

action.   The team was composed of personnel from the School, the

installation staff, and other tenant units on the installation.

Colonel (COL) Webb, who exercised special court-martial

jurisdiction over Appellant during the initial phase of the



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United States v. Simpson, No. 02-0001/AR


investigation, was a member of the team.   Summarized reports of

the team’s activities were provided to MG Longhouser, who

simultaneously served as the garrison commander of Aberdeen

Proving Ground and commander of the Test and Evaluation Command

(TECOM), and COL Glantz, the Garrison Commander.

     When concern arose that statements made by MG Shadley

during this period might be viewed as improperly influencing his

subordinates, including COL Webb, Appellant and others under

investigation were transferred from the School to the Garrison

Command at Aberdeen Proving Ground on October 4, 1996.    Under

the transfer, the responsibility for disposition and action on

military justice matters regarding Appellant was removed from

COL Webb and became the responsibility of officers assigned to

the Garrison Command.   The transfer did not affect MG Shadley’s

responsibility for activities at the School, including

management, training, and follow-up activities related to the

investigation.

     The new general court-martial convening authority over

Appellant was the Garrison Commander, MG Longhouser.    His

immediate superior was General Wilson, Commander of the Army

Material Command, located in Alexandria, Virginia.    COL Glantz

became the new special court-martial convening authority.

     During the fall of 1996, the CID continued its

investigation of alleged trainee abuse by Appellant and others,


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United States v. Simpson, No. 02-0001/AR


and eventually expanded the investigation to cover all Army

training installations.   In light of the expanding nature of the

investigation, MG Longhouser concluded that media inquiries

would soon follow.   Following recommendations from MG Longhouser

and MG Shadley, the Army held press conferences on November 7,

featuring remarks from the Chief of Staff of the Army, the

Commander of TRADOC, and MG Shadley regarding the investigation

in particular and trainee abuse in general.

     Later in November, COL Glantz recommended to MG Longhouser

that the charges against Appellant be referred to a general

court-martial.   On November 21, MG Longhouser referred the

charges for trial by general court-martial.   In designating the

primary and alternate court-martial members under Article 25,

UCMJ, 10 U.S.C. § 825 (2000), MG Longhouser excluded all

personnel under MG Shadley’s command at the School.

Subsequently, three sets of additional charges were reviewed by

COL Glantz and referred by MG Longhouser for trial by the same

court-martial.   At the initial session of the court-martial on

December 6, the military judge presiding over pretrial motions

announced that he would order the primary and alternate court-

martial panel members to avoid exposure to print and electronic

media stories concerning the investigation of sexual misconduct

at Aberdeen.




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United States v. Simpson, No. 02-0001/AR


     Between November 1996 and March 1997, statements about the

investigation and remarks about policy issues related to trainee

abuse were made by the Secretary of Defense, the Secretary of

the Army, the Assistant Secretary of the Army for Manpower and

Reserve Affairs, the Chairman of the Joint Chiefs of Staff, the

Chief of Staff of the Army, and other senior civilian and

military officials.   During the same period, the Secretary of

the Army established a Senior Review Panel to review actions

related to the prevention of sexual harassment.   The Chief of

Staff of the Army sent a personal letter to all general officers

communicating the Army’s existing policy on sexual harassment.

In addition, the Chief of Staff mandated that all active duty

personnel receive instruction on the Army’s sexual harassment

policy.

     On March 3, 1997, the defense filed a motion to dismiss the

charges with prejudice based on unfair pretrial publicity and

unlawful command influence.   After considering briefs, oral

testimony, and documentary evidence, the military judge denied

the motion on April 7.


                           B. DISCUSSION

     Appellant contends that his trial was tainted by unfair

pretrial publicity as well as unlawful command influence.   Much

of the record relied upon by Appellant is related to both



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United States v. Simpson, No. 02-0001/AR


concepts.    Although these concepts reflect a common interest in

ensuring impartial treatment in the judicial process, they

involve differing trial procedures and standards of review.     We

shall first address unfair pretrial publicity, and then consider

unlawful command influence.


                       1.   Pretrial Publicity

     Members of the armed forces are entitled to have their

cases adjudged by fair and impartial court-martial panels whose

evaluation is based solely upon the evidence, and not upon

prejudgment that may occur as a result of pretrial publicity.

United States v. Curtis, 44 M.J. 106, 139 (C.A.A.F. 1996), upon

reconsideration, 46 M.J. 129 (C.A.A.F. 1997)(findings affirmed

and sentence reversed); see Chandler v. Florida, 449 U.S. 560,

574 (1981); Wainwright v. Witt, 469 U.S. 412, 423 (1985);

Reynolds v. United States, 98 U.S. 145, 154-57 (1878).    The

doctrine of unfair pretrial publicity is based upon the

constitutional right to due process.    See U.S. Const. amend. V.

     The defense may raise the issue of unfair pretrial

publicity by demonstrating either presumed prejudice or actual

prejudice.   To establish presumed prejudice, the defense must

show that the pretrial publicity (1) is prejudicial, (2) is

inflammatory, and (3) has saturated the community.   See Curtis,

44 M.J. at 139 (citing Nebraska Press Ass’n v. Stuart, 427 U.S.



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United States v. Simpson, No. 02-0001/AR


539, 554 (1976)).   Depending on the circumstances of the case,

the potential for prejudice may be ameliorated through measures

such as a continuance, change of venue, sequestration, and

regulation of public comment by counsel.   See Nebraska Press

Ass’n, 427 U.S. at 552-53 (citing Sheppard v. Maxwell, 384 U.S.

333 (1966)).   To establish actual prejudice, the defense must

show that members of the court-martial panel had such fixed

opinions that they could not judge impartially the guilt of the

accused.   See Curtis, 44 M.J. at 139 (citing Mu’Min v. Virginia,

500 U.S. 415, 430 (1991); Irvin v. Dowd, 366 U.S. 717, 721-28

(1961)).   Without such a showing, evidence that the members had

knowledge of highly significant information or other

incriminating matters is insufficient.   Id.

     At trial, Appellant’s motion to dismiss was accompanied by

an extensive collection of news clippings, transcripts of

television programs, videotapes, and transcripts of interviews.

The material occupies five volumes of the trial record.   The

court below variously characterized material as reflecting a

“nationwide media blitz” and a “media feeding frenzy.”    55 M.J.

at 679, 682.   The court used these phrases to describe the

quantity and frequency of media interest, not as an evaluation

of the content of the material from a due process perspective.

     The court observed that the vast majority of the items

submitted by Appellant consisted of matter published in the two-


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United States v. Simpson, No. 02-0001/AR


week period following the Army’s initial announcement of the

investigation on November 7, 1996, and that many of the items

duplicated stories “published in various papers across the

country with little or no change in content from paper to

paper.”     Id. at 679 n.5.   While the court described the media

interest about trainee abuse in the Army as “extensive – even

pervasive – for approximately one month,” the court concluded

that the material was not inflammatory, noting that “the

pretrial publicity in this case was, in comparison to that found

in many civilian criminal investigations, very sparse on

details.”    Id. at 679, 687.   We agree.

     With respect to presumed prejudice, we note that although

there was extensive media interest, Appellant has not

demonstrated that the community was saturated with inflammatory

prejudicial material.    Relatively few of the articles directly

referred to Appellant.    Moreover, as a precautionary measure,

the members were ordered to avoid media coverage of trainee

abuse issues.    In view of these circumstances, Appellant has not

demonstrated presumed prejudice under generally applicable

principles of criminal law concerning unfair pretrial publicity.

See Rock v. Zimmerman, 959 F.2d 1237, 1252-53 (3d Cir. 1992).

     With respect to actual prejudice, we note that the military

judge permitted counsel to conduct extensive individual voir

dire of the court-martial panel prior to trial on the merits.


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United States v. Simpson, No. 02-0001/AR


The examination of the members revealed that the members had

encountered very little information about the trial or related

matters.   Appellant did not seek a change in venue on the basis

of unfair pretrial publicity, nor did Appellant cite unfair

pretrial publicity as the basis for challenging any of the

members of the court-martial panel.     In view of the foregoing

circumstances, Appellant has failed to demonstrate that he was

the victim of actual unfair pretrial publicity.       Whether such

material constituted unlawful command influence is a different

matter, which we shall consider in the following section.


                    2.   Unlawful Command Influence

a. In general

     In addition to raising the issue of unfair pretrial

publicity, Appellant contends that his court-martial was tainted

by actual unlawful command influence and the appearance of

unlawful command influence.     Appellant asserts that command

influence impermissibly constrained the discretion of the

officers involved in the disposition of the charges, and that

command influence improperly infected the impartiality of the

court-martial panel that adjudged the findings and sentence in

the present case.    See Art. 37, UCMJ, 10 U.S.C. § 837 (2000);

Rules for Courts-Martial 104, 401(a)(c)(2)(A) discussion.




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United States v. Simpson, No. 02-0001/AR


     Our cases provide a specific procedure for use at trial to

address allegations of actual unlawful command influence.

First, the defense must “show facts which, if true, constitute

unlawful command influence.”    United States v. Biagase, 50 M.J.

143, 150 (C.A.A.F. 1999).    Second, 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.”    Id.    “The threshold for raising

the issue at trial is low, but more thanmere allegation or

speculation."   Id.   The defense is required to present “'some

evidence'” of unlawful command influence.     Id. (quoting United

States v. Ayala, 43 M.J. 296, 300 (C.A.A.F. 1995)).     Third, if

the defense has made the requisite showing under the first two

steps, the burden shifts to the Government to: (1) disprove “the

predicate facts on which the allegation of unlawful command

influence is based”; (2) persuade the military judge “that the

facts do not constitute unlawful command influence"; or (3)

prove at trial "that the unlawful command influence will not

affect the proceedings.”    Id. at 151.   “Whichever tactic the

Government chooses, the quantum of proof is beyond a reasonable

doubt.”   United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F.

2002)(citing Biagase, 50 M.J. at 151).

     Depending on the nature of the alleged unlawful command

influence and other pertinent circumstances, the Government may


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United States v. Simpson, No. 02-0001/AR


demonstrate that unlawful command influence will not affect the

proceedings in a particular case as a result of ameliorative

actions.   Such actions might include transfer of responsibility

for disposition of charges to commanders not subject to the

influence, orders protecting servicemembers from retaliation,

changes in venue, liberal grants of challenges for cause, and

the use of discovery and pretrial hearings to delineate the

scope and impact of alleged unlawful command influence.     See,

e.g., Biagase, 50 M.J. at 152; United States v. Rivers, 49 M.J.

434, 443 (C.A.A.F. 1998).

     During appellate consideration, the three factors are

framed in terms of evaluation of a completed trial.   “[T]he

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.”   Biagase, 50 M.J. at 150 (citing United

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

     In the course of addressing these issues, military judges

and appellate courts must consider apparent as well as actual

unlawful command influence.   As we observed in Stoneman:

           This court has long recognized that, once
           unlawful command influence is raised, . .
           it [is] incumbent on the military judge to
           act in the spirit of the Code by avoiding
           even the appearance of evil in [the]
           courtroom and by establishing the confidence
           of the general public in the fairness of the


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United States v. Simpson, No. 02-0001/AR


            court-martial proceedings. . . .
            Accordingly, disposition of an issue of
            unlawful command influence falls short if it
            fails to take into consideration the concern
            of Congress and this Court in eliminating
            even the appearance of unlawful command
            influence at courts-martial. . . . The
            appearance of unlawful command influence is
            as devastating to the military justice
            system as the actual manipulation of any
            given trial. . . .

            . . . Even if there [is] no actual unlawful
            command influence, there may be a question
            whether the influence of command placed an
            intolerable strain on public perception of
            the military justice system.

57 M.J. at 42-43 (citations, internal quotations and parentheses

omitted).


b. The relationship between publicity and unlawful command
influence

     Appellant’s primary contention in the present case is that

“[t]here is presumed prejudice and apparent unlawful command

influence, because the publicity in [his] case overwhelmingly

saturated the military community, as evidenced by the newspaper

stories, national news magazine stories, transcripts of

television interviews, editorial comments, and interviews of

senior officials, which were made part of the record of trial at

Appellate Exhibit LXXV.”

     The gist of Appellant’s argument is that unlawful command

influence may be established if substantial public interest in a

pending proceeding is generated when the military leadership


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United States v. Simpson, No. 02-0001/AR


provides information to the media in general, and members of the

armed forces in particular, regarding pending charges, which

then results in extensive media coverage, commentary, and

congressional interest.     As we noted in United States v.

Rockwood, 52 M.J. 98, 103 (C.A.A.F. 1999), “Public criticism of

military operations – including withering critiques of strategy,

tactics, personnel policies, and human rights concerns – is

inherent in a democracy.”    The prohibition against unlawful

command influence does not require senior military and civilian

officials to refrain from addressing such concerns    -- including

matters affecting the training of recruits -- through press

releases, responses to press inquiries, and similar

communications.

     When members of the public entrust their sons and daughters

to the military training process, they expect to receive

accurate and complete information about the quality of the

training environment, including the state of discipline.      The

public also expects military leaders, who exercise both

prosecutorial and judicial functions in the military justice

process, to exercise due care in developing and executing

communications plans when potential military justice actions are

pending.   As noted by the court below:

           When those with the mantle of command
           authority deliberately orchestrate pretrial
           publicity with the intent to influence the


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United States v. Simpson, No. 02-0001/AR


          results in a particular case or series of
          cases, the pretrial publicity itself may
          constitute unlawful command influence. Even
          the perception that pretrial publicity has
          been engineered to achieve a prohibited end
          – regardless of the intent of those
          generating the media attention – may lead to
          the appearance of unlawful command
          influence.

55 M.J. at 687.

     In the present case, the vast majority of the comments made

by the senior military and civilian officials were not

particularly remarkable.   While we must separately consider

whether any of the specific statements made by the senior

officials constituted unlawful command influence, see Part

I.B.2.c., infra, the overall tenor of statements made by senior

officials did not constitute an express or implied command

position on disposition or adjudication.

     Under these circumstances, Appellant has not met his burden

under Biagase of demonstrating that the general tenor of the

leadership’s interaction with the media demonstrated either the

intent to improperly influence the court-martial process or the

appearance of such an influence.     To the extent that Appellant

relies upon specific comments in the media by persons outside

the chain of command, including Members of Congress, Appellant

has not shown that the personnel involved in the disposition of

charges or on the court-martial panel were aware of such




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United States v. Simpson, No. 02-0001/AR


comments or that such comments could reasonably be perceived as

carrying the force of command influence.


c. Specific phrases within the statements made by the senior
leadership

     Appellant next contends that it was inappropriate for the

senior leadership of the Department of Defense and the Army to

use command publications and instructional programs to emphasize

the Army’s “zero tolerance” policy regarding sexual harassment

in the context of a well-publicized investigation and possible

trial of service members for sexual abuse of trainees.

     The implication of the phrase “zero tolerance” to personnel

in the military justice process depends on the training and

experience of the person hearing the phrase, as well as the

specific circumstances of a case.    Compare United States v.

Kropf, 39 M.J. 107 (C.M.A. 1994), with United States v.

Kirkpatrick, 33 M.J. 132 (C.M.A. 1991); cf. United States v.

Wood, 25 M.J. 46 (C.M.A. 1987)(relying in part on Navy’s zero

tolerance policy to support an informant’s reliability in the

context of a search and seizure motion).    The meaning of “zero

tolerance” may range from the relatively benign (e.g., a

reminder to not overlook misconduct) to the prejudicial (e.g.,

an admonition to produce a particular disposition or court-

martial result).   The record of trial indicates that the persons

involved in Appellant’s case understood that the military


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United States v. Simpson, No. 02-0001/AR


leadership’s discussion of a “zero tolerance” policy on sexual

harassment referred to existing Army policy, but did not require

a particular disposition.   For example, in response to defense

counsel’s questions during voir dire, Lieutenant Colonel William

Paul, III, stated that under the concept of zero tolerance, a

person who violated applicable rules would be subject to

“appropriate action” in terms of being “counseled, charged -- or

investigated and charged, or whatever.     But, to me, and

especially when you are speaking of soldiers, I think that means

that you’re not going to make any exceptions as far as rank, or

position or anything like that.”     The responses of the members

during voir dire reflected an understanding that the policy

stood for the proposition that allegations of sexual harassment

should not be ignored; and that the policy did not direct a

particular response to an allegation of sexual harassment or

otherwise constrain the exercise of discretion with respect to

disposition of charges or adjudication of findings or sentence.

     Defense counsel interviewed the general court-martial

convening authority prior to trial, cross-examined the general

and special court-martial convening authorities during trial,

and conducted extensive voir dire of the members at trial.    In

this appeal, Appellant has not demonstrated that those

individuals misapprehended the Army’s zero tolerance policy on

sexual harassment, or that they viewed it as a command


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United States v. Simpson, No. 02-0001/AR


expectation to take any particular action or range of actions

with respect to disposition of charges or adjudication of the

findings and sentence.   In light of the background and

experience of the personnel involved in disposition of charges

and on the court-martial panel, as well as their responses to

questions about the term “zero tolerance,” we conclude that the

Appellant has failed to demonstrate under Biagase that the

phrase “zero tolerance” raised the issue of unlawful command

influence in the present case.

     Moreover, assuming that Appellant met his burden, the

testimony of the forwarding and referring authorities, as well

as responses of the panel members on voir dire, demonstrate

beyond a reasonable doubt under the third Biagase factor that

Appellant’s trial was not prejudiced by references to the Army’s

“zero tolerance” policy under the particular circumstances of

this case.   Furthermore, the manner in which the military judge

considered these issues at trial rebuts any reasonable inference

that references to “zero tolerance” created the appearance of

unlawful command influence in this case.

     We emphasize that our conclusions are specific to this

case, and that the question of whether a “zero tolerance” policy

has been presented in a setting that improperly affected the

court-martial process must be addressed on a case-by-case basis.

See Kropf, 39 M.J. at 109; see also United States v. Baldwin, 54


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United States v. Simpson, No. 02-0001/AR


M.J. 308, 310 (C.A.A.F. 2001); United States v. Brice, 19 M.J.

170, 171-72 (C.M.A. 1985); United States v. Grady, 15 M.J. 275,

276 (C.M.A. 1983).

     Appellant further contends that the senior military and

civilian leadership improperly influenced the disposition of

charges and actions of the court-martial by: (1) using phrases

such as “no leniency” and “severe punishment”; (2) asserting as

a factual conclusion that there had been an “abuse of power”;

and (3) articulating an incorrect legal conclusion -- that

“there is no such thing as consensual sex between drill

sergeants and trainees.”   The media items submitted by Appellant

attribute these phrases to the Secretary of the Army, the

Assistant Secretary for Manpower and Reserve Affairs, the Chief

of Staff of the Army, and other senior leaders.

     In the present case, the testimony of the officers involved

in the disposition decision and the answers of the panel members

during voir dire demonstrate that the persons responsible for

prosecutorial discretion and adjudication in Appellant’s court-

martial were either completely unaware of the foregoing

statements or had only a vague recollection of such comments by

the senior leadership.   None of these statements were

transmitted directly to persons involved in the court-martial

process, nor were they communicated through command channels.

The phrases at issue were not otherwise repeated or disseminated


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United States v. Simpson, No. 02-0001/AR


in a manner so direct or pervasive as to undermine the

reasonableness of the assertions by persons involved in

Appellant’s court-martial either that they were not aware of

such comments or that they did not regard the media reports as

reflecting command policy.

     Under these circumstances, we conclude that the Government

has demonstrated beyond a reasonable doubt that the few media

stories in which these phrases appeared did not taint

Appellant’s court-martial with unlawful command influence.

Because the Government has met the third prong of Biagase by

showing beyond a reasonable doubt that the court-martial was not

unlawfully influenced, we need not determine whether, in the

context of the present case, the phrases at issue fit within the

first two prongs of the Biagase test.

     With respect to apparent unlawful command influence, we

take note of: (1) the early action to transfer Appellant to

another jurisdiction in light of the potentially improper

statements by the commander of the School; (2) the decision to

compose the court-martial panel from persons outside the School;

(3) the order of the military judge shielding members from media

stories about the investigation; (4) the wide variety of

disposition decisions in related cases growing out of the

investigation at Aberdeen Proving Ground, including dismissal of

charges, non-judicial punishment, administrative discharge, and


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United States v. Simpson, No. 02-0001/AR


referral to special as well as general courts-martial; (5) the

extensive ventilation of the unlawful command influence

allegations at trial through testimony, documentary evidence,

briefs, arguments of counsel, and a detailed written decision by

the military judge, all of which focused on the impact on

subordinate commanders and panel members; and (6) the fact that

the defense did not seek a change of venue due to the pretrial

publicity or unlawful command influence, nor did the defense

challenge any of the panel members on the basis of potential

exposure to pretrial publicity or unlawful command influence.

In light of these circumstances, the Government has adequately

demonstrated that Appellant’s trial was not tainted by the

appearance of unlawful command influence.

     We emphasize, again, that our conclusion reflects the

specific circumstances of this case.   Whether similar

communications in a different context would be prejudicial as a

matter of actual or apparent unlawful command influence is a

matter that necessarily must be assessed in light of the

differing context.   In that regard, we note that senior

officials and the attorneys who advise them concerning the

content of public statements should consider not only the

perceived needs of the moment, but also the potential impact of

specific comments on the fairness of any subsequent proceedings

in terms of the prohibition against unlawful command influence.


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United States v. Simpson, No. 02-0001/AR




          II. INSTRUCTIONS CONCERNING CONSTRUCTIVE FORCE

                           A. BACKGROUND

     The offenses of rape and forcible sodomy both require proof

that the act was committed by force and without consent.

Article 120(a); Manual for Courts-Martial, United States (2000

ed.) [hereinafter MCM] Part IV paras. 45.b.(1)(b), 51.b.(3).

Although force and lack of consent are separate elements, our

case law recognizes that there may be circumstances in which the

two elements are so closely intertwined that both elements may

be proved by the same evidence.    See United States v. Palmer, 33

M.J. 7, 9-10 (C.M.A. 1991)(“[C]onsent induced by fear, fright,

or coercion is equivalent to physical force.”).    Such

"constructive force may consist of expressed or implied threats

of bodily harm."   United States v. Hicks, 24 M.J. 3, 6 (C.M.A.

1987).   Constructive force may be shown by proof of a coercive

atmosphere that includes, for example, threats to injure others

or statements that resistance would be futile.    See MCM Part IV,

para. 45.c.(1)(b).

     In the context of the special relationship between non-

commissioned officers and trainees, we have observed that the

NCO –-

           cannot create by his own actions an
           environment of isolation and fear and then
           seek excusal from the crime of rape by


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United States v. Simpson, No. 02-0001/AR


          claiming the absence of force especially
          where, as here, passive acquiescence is
          prompted by the unique situation of
          dominance and control presented by
          appellant’s superior rank and position.

United States v. Clark, 35 M.J. 432, 436 (C.M.A. 1992)(internal

quotations and citations omitted).    See, e.g., United States v.

Cauley, 45 M.J. 353, 356-57 (C.A.A.F. 1996); United States v.

Bradley, 28 M.J. 197 (C.M.A. 1989).   As noted by the court

below, although “rank disparity alone is not sufficient to

constitute constructive force[,] the evidence in this case

presents far more than mere rank disparity between the appellant

and his victims.”   55 M.J. at 697 n.40 (citations omitted). The

court below identified the following factors demonstrating the

relationship between the offenses at issue and Appellant’s

superior rank and position:

          (1) the appellant’s physically imposing
          size; (2) his reputation for being tough and
          mean; (3) his position as a noncommissioned
          officer; (4) his actual and apparent
          authority over each of the victims in
          matters other than sexual contact; (5) the
          location and timing of the assaults,
          including his use of his official office and
          other areas within the barracks in which the
          trainees were required to live; (6) his
          refusal to accept verbal and physical
          indications that his victims were not
          willing participants; and (7) the relatively
          diminutive size and youth of his victims,
          and their lack of military experience.

55 M.J. at 707.   Additionally, Appellant used his

authority over the victims to issue orders that placed


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United States v. Simpson, No. 02-0001/AR


them in the isolated locations where the charged rapes

occurred.    See 55 M.J. at 700-06.

     The military judge in the present case provided the members

with detailed instructions on each of the elements.    He also

gave specific instructions on both actual and constructive

force.   With respect to constructive force, he included the

following:

            There is evidence which, if believed, may
            indicate that the accused used or abused his
            military position and/or rank and/or
            authority in order to coerce and/or force
            the alleged victim to have sexual
            intercourse. In deciding whether the
            accused possibly used or abused his
            position, rank or authority and whether the
            alleged victim had a reasonable belief that
            death or physical injury would be inflicted
            on her and that further resistance would be
            futile under the totality of the
            circumstances, you should consider all the
            evidence presented in this case that bears
            on those issues.

     Prior to instructing the members, the military judge

conducted an extensive review of the proposed instructions with

counsel.    During these discussions, the parties and the military

judge addressed the constructive force language in considerable

detail, including deviations from pertinent model instructions

in the Military Judges' Benchbook.    See Legal Services, Dep't of

the Army, Pamphlet 27-9, Military Judges' Benchbook (2001)

[hereinafter Benchbook].    Defense counsel, who raised a number

of concerns about various proposed instructions related to the


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United States v. Simpson, No. 02-0001/AR


rape charges during these discussions, did not object to the

constructive force instruction given by the military judge.      See

55 M.J. at 698.

     In the present appeal, Appellant cites the differences

between the instruction given by the military judge and the

model instruction for the proposition that the instruction at

trial was objectionable.   According to Appellant:

          Because the instruction did not inform and
          limit the panel members on how they could
          utilize the evidence of the appellant’s
          alleged use or abuse of military authority,
          the instruction as given permitted a
          loophole where none was intended to be. The
          loophole was large enough so that it
          permitted the panel members to find the
          appellant guilty of rape as long as they
          concluded the appellant used his military
          power or position to order the alleged
          victims to have sexual intercourse and
          sodomy with him, even if the alleged victims
          had no reasonable belief that death or great
          bodily harm would be inflicted upon them and
          had no reasonable belief that resistance
          would be futile.


                           B. DISCUSSION

     The issue of whether a court-martial panel was properly

instructed is a question of law, which we review de novo.

United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003).   In

the present case, the military judge provided instructions on

the pertinent elements, and the issue before us is whether the

military judge erred by not providing greater specificity or



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United States v. Simpson, No. 02-0001/AR


amplification.    Any such deficiency is waived by defense

counsel's failure to object unless the instructions were so

incomplete as to constitute plain error.     See United States v.

Glover, 50 M.J. 476, 478 (C.A.A.F. 1999).

     With respect to deviations from the model instructions in

the Benchbook, we note that the military judge was not required

to follow literally the non-binding examples therein.    See

United States v. Bigelow, 57 M.J. 64, 67 (C.A.A.F. 2002).      The

instruction actually given by the military judge, which was

discussed in detail with counsel, summarized the general concept

of constructive force under our case law.    See, e.g., Cauley, 45

M.J. at 356-57.   If defense counsel believed that further

amplification of the law by the military judge was warranted,

the time to request such modifications was at trial, when the

military judge could have tailored any requested wording to the

law and the evidence.   Counsel was actively engaged in the

consideration of the instruction at trial.    Under these

circumstances, there was no plain error.

     We do not agree with Appellant’s contention that, even if

not waived, the content of the constructive force instruction

provided by the military judge was defective.    Appellant

suggests that the military judge erred by providing a

constructive force instruction referring to fear of “physical

injury” rather than fear of “great bodily harm.”    Fear of “great


                                 27
United States v. Simpson, No. 02-0001/AR


bodily harm” is used in the MCM with respect to inferring

consent on the element of lack of consent. See MCM Part IV,

para. 45.c.(1)(b).   With respect to the use of constructive

force to prove the element of force, however, we have held that

it is sufficient if the Government proves that the abuse of

authority placed the victim in fear of physical injury. See

Cauley, 45 M.J. at 356 (quoting Palmer, 33 M.J. at 9).

     Appellant also suggests that the instruction was deficient

because it failed to focus the attention of the members on

whether the alleged victims had a reasonable belief that they

would be harmed or that resistance would be futile.   The

military judge, however, adequately addressed those concerns in

the related instruction he provided on the element of force,

which he gave immediately prior to the constructive force

instruction:

          In the law of rape, various types of conduct
          are sufficient to constitute force. The
          most obvious type is actual physical force,
          that is, the application of physical
          violence or power to compel the victim to
          submit against her will. Actual physical
          force, however, is not the only way force
          can be established. Where intimidation or
          threats of death or physical injury make
          resistance futile, it is said that
          constructive force has been applied, thus
          satisfying the requirement of force.

               Hence, when the accused’s actions and
          words or conduct, coupled with the
          surrounding circumstances, create a
          reasonable belief in the victim’s mind that


                                28
United States v. Simpson, No. 02-0001/AR


          death or physical injury would be inflicted
          on her and that further resistance would be
          futile, the act of sexual intercourse has
          been accomplished by force.

The two related instructions sufficiently informed the members

that force was required for the crime of rape, that it could be

in the form of constructive force, and that constructive force

could be brought to bear on the victim through the use or abuse

of military authority that created a reasonable belief that the

victim would suffer physical injury or that resistance would be

futile.   The military judge was not required to track literally

the guidance in the Benchbook.   See Bigelow, 57 M.J. at 67.



                           III. DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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