

   
   
   
   U.S. v. Haagenson



IN THE CASE OF
UNITED STATES, Appellee
v.
Mary Julia E. HAAGENSON, Chief Warrant Officer
2
U.S. Marine Corps, Appellant
 
No. 98-0581
Crim. App. No. 96-1296
 
United States Court of Appeals for the Armed
Forces
Argued January 14, 1999
Decided September 28, 1999
EFFRON, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, J., joined. SULLIVAN, J., filed
a concurring opinion. GIERKE, J., filed an opinion concurring in part and
dissenting in part, in which CRAWFORD, J., joined.

Counsel
For Appellant: Lieutenant Jennifer L. Eichenmuller,
JAGC, USNR (argued).
For Appellee: Lieutenant Commander John
A. Maksym, JAGC, USNR (argued); Colonel K. M. Sandkuhler,
USMC, Commander E. E. Irvin, JAGC, USN, and Lieutenant
James E. Grimes, JAGC, USNR (on brief); Commander D. H. Myers,
JAGC, USN, and Lieutenant Russell J. E. Verby, JAGC, USNR.
Military Judge: C. L. Carver
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge EFFRON delivered the opinion of the Court.
Contrary to her pleas, appellant was convicted
by a general court-martial composed of officer members of one specification
of fraternization, in violation of Article 134, Uniform Code of Military
Justice, 10 USC § 934. The court sentenced her to a dismissal, reprimand,
and loss of lineal numbers. The convening authority approved the sentence,
and the Court of Criminal Appeals affirmed.
On appellants petition, we granted review
of the following issues:



I. WHETHER THE LOWER COURT ERRED WHEN 1)
IT AFFIRMED THE FINDINGS AND SENTENCE WHEN THE GOVERNMENT FAILED TO ESTABLISH
THAT THE COURT-MARTIAL PANEL WAS SELECTED IN ACCORDANCE WITH ARTICLES 25
AND 37, UCMJ, AND 2) FAILED TO ADDRESS THE ISSUE OF APPARENT UNLAWFUL COMMAND
INFLUENCE AT ALL.
II. WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED
THAT THERE WAS NO EVIDENCE THAT THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY
WITHDREW APPELLANTS REFERRED CHARGE FROM A SPECIAL COURT-MARTIAL AND RE-REFERRED
IT TO AN ARTICLE 32 INVESTIGATION AS A RESULT OF UNLAWFUL COMMAND INFLUENCE.
III. WHETHER THE LOWER COURT ERRED WHEN IT
DETERMINED THAT APPELLANT WAS NOT DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL WHEN HER TRIAL DEFENSE COUNSEL FAILED TO PRESENT
ANY WITNESSES IN THE SENTENCING CASE AND WAITED UNTIL DELIBERATIONS ON
FINDINGS TO BEGIN GATHERING FAVORABLE DOCUMENTARY SENTENCING EVIDENCE.



For the reasons stated below, we conclude that
a factfinding hearing is necessary as a predicate to resolving appellant's
assertions of legal error. See United States v. DuBay, 17
USCMA 147, 37 CMR 411 (1967).

I. WITHDRAWAL AND RE-REFERRAL OF CHARGES
Issue II concerns the propriety of the withdrawal
of appellant's case from a special court-martial by a subordinate convening
authority and its ultimate referral by a superior convening authority to
a general court-martial. The convening authority or a superior competent
authority may withdraw charges from a court-martial at any time before
findings are announced. RCM 604(a), Manual for Courts-Martial, United
States (1998 ed.). Subsequently, such charges may be referred to another
court-martial, "unless the withdrawal was for an improper reason." RCM
604(b).
The Discussion accompanying RCM 604(b) identifies
several permissible reasons for withdrawal prior to arraignment, including
receipt of additional charges, absence of the accused, reconsideration
by the convening authority, issues concerning the mental capacity of the
accused, and routine duty rotation of court-martial personnel. The Discussion
also provides examples of improper reasons for withdrawal, including an
intent to interfere with the rights of the accused, an intent to interfere
with the impartiality of a court-martial, or an action that does not represent
the personal and independent judgment of the authority ordering withdrawal.
When charges have been withdrawn and referred to a later court-martial
that is more onerous to the accused, the Discussion notes that "the reasons
for the withdrawal and later referral should be included in the record
of the later court-martial."
In the present case, an initial referral to
a special court-martial was withdrawn, and the matter was later referred
to the general court-martial that tried appellant.1
Documents filed at the Court of Criminal Appeals, which are not in dispute
between the parties, reflect the following circumstances concerning
the earlier referral and withdrawal of charges from a special court-martial.
Colonel Christy, who was the commanding officer
of appellant's Battalion and who served as the Special Court-Martial Convening
Authority (SPCMCA), signed a charge sheet on May 2, 1995, referring
a charge of fraternization to a special court-martial under convening
order number 8-95. Colonel Christy had signed convening order number
8-95 on that same date.
On May 3, Colonel Christy received a
letter from his military justice officer, who later served as trial counsel
in this case. That officer recommended that Colonel Christy reconsider
his decision to refer the matter to a special court-martial. On the same
day, Colonel Christy withdrew the charge from the special court-martial.
In his withdrawal letter, Colonel Christy cited his "reconsideration
of the seriousness of the charge, the nature of the offense, and [his]
knowledge of evidence that may lead to additional charges after further
investigation."
Colonel Christy referred the matter for a pretrial
investigation under Article 32, UCMJ, 10 USC § 832. On July
28, the Article 32 investigating officer recommended that the original
charge, along with two additional specifications, be referred to a general
court-martial. The SPCMCA forwarded the charges to the Base Commander,
who referred the charges to a general court-martial on September 1, 1995.
The parties do not agree on the reasons for
the withdrawal and subsequent referral. At the court below, appellant submitted
an affidavit from Colonel Christy's Executive Officer, Major (Retired)
Greene, who described a meeting between Colonel Christy and Colonel
Murray, who was the Chief of Staff to the Base Commander around
the time of the initial referral and withdrawal.
According to Major Greene, Colonel Murray "wielded
a lot of power over the other colonels attached to the Marine Corps Base."
Major Greene recalls the meeting as follows:



I remember being present when Colonel Murray
decided that she [appellant] should not be in the Marine Corps anymore.
He told Colonel Christy "I want her out of the Marine Corps," or words
to that effect. Colonel Murray was very, very angry when he said this.
He was yelling. He was, in fact, enraged. His anger was beyond normal,
professional irritation. It was as if he had something personal against
her.

. . .
Having originally come from an Infantry background,
I would consider myself pretty strict. But as I have stated, the level
of hostility towards CWO2 Haagenson had evolved into something irrational
and unprofessional, and it did disturb me. I recall Colonel Murray specifically
stating, "this is going to be the last nail in her coffin."



The Government submitted an affidavit from Colonel
Christy, who stated that he did "not specifically recall" why he
had withdrawn the charges, but recalled that he had done so "on
advice of counsel." He added that there was "absolutely no command influence
associated with [his] decision." In apparent contrast to Major Greene's
affidavit, Colonel Christy asserted: "The Chief of Staff never said anything
in my presence regarding any personal animosity towards her."
In summary, the defense takes the position
that this is a case in which a commander was improperly pressured by the
representative of a superior commander to change his discretionary referral
decision. The Government contends that Colonel Christy was simply correcting
an erroneous referral based upon his unawareness of the limited sentencing
powers of a special court-martial over a warrant officer.2
The court below stated that it found "no support"
for appellant's contention in the record or the appellate submissions.
Unpub. op. at 8. We do not agree that the documents filed in the court
below provides "no support" for the defense claim. Major Greene's sworn
affidavit clearly contains such material, in sufficient quantity
and quality to raise the issue of unlawful command influence.3
At the same time, in light
of Colonel Christy's affidavit, we do not find that the defense materials
demonstrate conclusively that the SPCMCA's discretion was improperly influenced.
What we have is an inadequately developed
record. In the present case, trial counsel misinformed the court about
the existence of a prior referral, and no effort was made to set forth
the basis for withdrawal of that referral, as contemplated by the Discussion
accompanying RCM 604(b). Had he done so, there would have been an appropriate
record, litigation of disputed matters, and findings of fact and conclusions
of law by the military judge.
In the absence of a properly developed
record, we note that appellant's claim -- that the exercise of discretion
by the SPCMCA was improperly influenced by a superior -- is neither "inadequate
on its face" nor "conclusively refuted as to the alleged facts by the files
and records of the case." United States v. Ginn, 47 MJ 236, 244
(1997). In that posture, the Court of Criminal Appeals was not in a position
to resolve the controverted issue without a prior evidentiary hearing.
See id. at 243 ("Article 66(c) does not authorize a Court
of Criminal Appeals to decide disputed questions of fact pertaining to
a post-trial claim, solely or in part on the basis of conflicting affidavits
submitted by the parties."). Accordingly, we cannot affirm the findings
or sentence in this case in its present posture.

II. PANEL SELECTION AND INEFFECTIVENESS
OF COUNSEL
Because the issues involved in Issue
I (alleged improprieties in the selection of court members) are closely
related to the matters arising under Issue II, particularly with respect
to the critical role played by the Base Chief of Staff, Colonel Murray,
we also find that it is appropriate for these matters to be resolved in
an evidentiary hearing. With respect to Issue III, regarding ineffectiveness
of counsel during the sentencing phase, we conclude that the interests
of judicial economy would be served by requiring that this issue also be
addressed during the factfinding proceedings required by our disposition
of Issues I and II.

III. CONCLUSION
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Navy for factfinding proceedings consistent
with this opinion. Thereafter, Articles 66 and 67, UCMJ, 10 USC §§
866 and 867 (1994), will apply. In the event that an appropriate convening
authority concludes that such proceedings are impracticable, the convening
authority may set aside the findings and the sentence and return the case
to a special court-martial convening authority for appropriate disposition
under RCM 401.
FOOTNOTES:
1 The earlier
referral to a special court-martial, however, was not disclosed at the
time of the general court-martial. Trial counsel at the general court-martial
represented on the record that the charge had not been referred to any
other court. Possibly, this incorrect representation explains why no reasons
for the withdrawal and later re-referral were included in the record. See
Discussion, RCM 604(b). We note that the trial counsel who inaccurately
asserted that there had been no prior referral was the same officer who
earlier had recommended that the special court-martial convening authority
reconsider the initial referral to a special court-martial.
2
With respect to a warrant officer, a special court-martial is not empowered
to adjudge either confinement or a punitive separation. See RCM
1003(c)(2)(A)(ii) and (iv).
3
In the face of the order of events leading to Colonel Christy's withdrawal
of the original charge from the special court-martial convened by him,
our dissenting colleagues treat this issue as one affecting "the preferral
and forwarding process, not the referral." ____ MJ (3). There is
no dispute, however, that Colonel Christy already had referred the original
charge to a special court-martial and then withdrew that charge before
he forwarded it for investigation under Article 32. The issue before us
is his motivation in that withdrawal decision. The dissenters' reliance
on "the waiver rule announced by this Court in" United States v. Hamilton,
41 MJ 32 (CMA 1994), is misplaced, because that rule applies only to defects
in the preferral and forwarding processes of a case. Id. at 36.
Indeed, the majority in Hamilton squarely recognized that "[u]nlawful
command influence at the referral, trial, or review stage is not waived
by failure to raise the issue at trial." Id. at 37.
 
 
SULLIVAN, Judge (concurring):
I applaud my learned brothers opinion
remanding this case for further factfinding to more fully develop the record.
As I see the present facts of record, including the unrebutted affidavit
of Major Greene,1
they may well support a reasonable conclusion that unlawful command influence
occurred. These facts show a change from a special court-martial (where
appellant faced no dismissal) to a general court-martial (where appellant
faced a dismissal). This change directly followed an incident where the
chief of staff (superior officer) yelled to the special court-martial convening
authority (the subordinate officer) that he "want[ed appellant] out of
the Marine Corps." A reasonable observer of the justice system in the military
could view this sequence of events as command influence. See Art.
37, UCMJ, 10 USC § 837.
Command influence is an unseen enemy of justice
in the military. It is difficult to see and harder to prove. The remand
I join today may shed further light on this incident, which may have caused
a convening authority to bend his official power to suit the wish of a
senior officer. We may never know for sure, but at least our Court is seeking
the truth  but not on the basis of an incomplete or suspicious record.
FOOTNOTE:
1 The Greene
affidavit at this point stands unrebutted. A factfinding hearing may produce
more or different facts which may confirm or rebut a finding of
command influence.
 
 
GIERKE, Judge, with whom CRAWFORD, Judge, joins
(concurring in part and dissenting in part):
I disagree with the majoritys decision to
order further factfinding on Issue I. The issue was raised at trial and
fully litigated. The military judge made extensive findings of fact and
conclusions of law. There is no need for more factfinding on this issue.
By remanding the issue, the majority suggests
that the military judges findings of fact or conclusions of law, as well
as the decision of the court below, are incorrect. To overturn the military
judges ruling and the decision of the court below, without explanation
or citation of authority, undermines the careful analytical framework recently
adopted by this Court in United States v. Upshaw, 49 MJ 111 (1998),
and United States v. Lewis, 46 MJ 338 (1997).
The alleged court packing arose from the actions
of Colonel (Col) Murray, the chief of staff who was temporarily in command.
In my view, the commanding general, Major General (MajGen) Howard, remedied
any attempted court packing when he returned to his command and selected
a new panel. Two of the officers initially appointed by Col Murray and
then reappointed by MajGen Howard, Col Swords and Lieutenant Colonel Stevens,
were not challenged for cause as being biased or improperly selected. In
my view, any argument that the officers selected by MajGen Howard were
tainted by the chief of staffs action rings hollow in the absence of any
effort to challenge them.
I also disagree with the majoritys decision
to remand Issue II. Because the issue was not raised at trial, it was waived
unless it rises to the level of plain error. See United States
v. Hamilton, 41 MJ 32 (CMA 1994).
In my view, any alleged unlawful command influence
could have affected only Col Christys reconsideration of his decision
to send the case to a special court-martial. Appellant asserts that Col
Christy reconsidered because of unlawful command influence exercised by
Col Murray. Col Christy unequivocally asserts that "[t]here was absolutely
no command influence associated with [his] decision." He convened an Article
32 investigation of the original charge and specification, as well as three
additional specifications. The investigating officer recommended that the
allegation of obstructing justice be dismissed but that the remaining charge
and specifications be referred to a general court-martial.
Before the Article 32 investigation was completed,
Col Christy had been reassigned and replaced. Col March, his successor,
forwarded the charges with a recommendation for trial by general court-martial.
There is no evidence or allegation that Col March was subjected to unlawful
command influence. There is no allegation and no evidence that MajGen Howards
decision to refer the case to a general court-martial was tainted by unlawful
command influence.
In my view, Col Christys decision to withdraw
the charges from a special court-martial, prefer additional charges, and
order an Article 32 investigation was part of the preferral and forwarding
process, not the referral. Accordingly, the waiver rule announced by this
Court in United States v. Hamilton, supra, applies.
Under a plain error analysis, appellant has
the initial burden of persuading us that an error rises to the level of
plain error. See United States v. Powell, 49 MJ 460, 464-65
(1998). In my view, appellant has not carried that burden.
I do not believe that a remand is necessary
to determine if there was plain error. The issue can be resolved by assuming
that Col Murray made the comments attributed to him, and that the comments
were made on or about May 1, 1995, the date estimated by Maj Greene.
Col Murray was not in command when the statements
allegedly were made. Col Murray was a staff officer, and Col Christy was
a senior commander. Thus, Col Murray was not in Col Christys chain of
command. Both Col Murray and Col Christy held the same military grade.
There is nothing in the record showing that Col Murray participated in
rating Col Christys performance. The appellate record shows only that
Col Murray and Col Christy had known each other "for many years." See
United States v. Villareal, No. 98-0200, ___ MJ ___ (CMA 1999) (no
unlawful command influence where commander sought out advice of "old shipmate"
who was temporarily in command).
The record shows that Col Christy reconsidered
his decision after his military justice officer pointed out the contradictions
in his proposed disposition. Col Christy had directed referral to a special
court-martial but had also checked the box on the preprinted form stating
that "confinement is authorized." Maj Niesen, the "military justice officer,"
pointed out that a special court-martial may not impose confinement on
a warrant officer. The record also demonstrates that, after COL Christy
reconsidered his original decision, two additional fraternization offenses
and an obstruction of justice offense were preferred. The record shows
that an independent Article 32 investigating officer investigated all the
charges and recommended trial by general court-martial. The charge of obstructing
justice was dismissed in accordance with the recommendation of the Article
32 investigating officer. The record shows that Col Christy had departed
the command by the time his successor, Col March, forwarded the Article
32 investigation and recommended trial by general court-martial. Finally,
the record shows that MajGen Howard, an officer superior to the chief of
staff, made the decision to refer the three fraternization offenses to
a general court-martial. On this record, I do not find plain error.
With respect to Issue III, I agree that appellants
assertions are sufficient to require explanation by defense counsel. See
United States v. Lewis, 42 MJ 1, 6 (1995). In my view, however,
a factfinding hearing is premature. Until defense counsel files an affidavit
addressing appellants assertions, this Court cannot determine if there
are controverted questions of fact requiring a factfinding hearing. See
United States v. Ginn, 47 MJ 236 (1997).

Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Public
Notice of Hearings
