                        UNITED STATES, Appellee

                                     V.

                     John S. STONEMAN, Specialist
                         U.S. Army, Appellant


                               No. 01-0295


                         Crim. App. No. 9800137



       United States Court of Appeals for the Armed Forces

                        Argued January 22, 2002

                          Decided July 5, 2002

    GIERKE, J., delivered the opinion of the Court, in which
       EFFRON and BAKER, JJ., and SULLIVAN, S.J., joined.
           SULLIVAN, S.J., filed a concurring opinion.
           CRAWFORD, C.J., filed a dissenting opinion.

                                  Counsel
For Appellant: Captain Sean S. Park (argued); Colonel Adele H.
   Odegard, Lieutenant Colonel E. Allen Chandler, Jr., and Major
   Imogene M. Jamison (on brief); Lieutenant Colonel David A.
   Mayfield.

For Appellee: Captain Paul T. Cygnarowicz (argued); Colonel
   Steven T. Salata, Lieutenant Colonel Paul H. Turney, and
   Major Anthony P. Nicastro (on brief).

Military Judges:     Stephen V. Saynisch and Debra L. Boudreau


  This opinion is subject to editorial correction before final publication.
United States v. Stoneman, No. 01-0295/AR


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of raping and

sodomizing a child under the age of sixteen, in violation of

Articles 120 and 125, Uniform Code of Military Justice (UCMJ), 10

USC §§ 920 and 925, respectively.           The adjudged and approved

sentence provides for a bad-conduct discharge, confinement for

seventy-eight months, total forfeitures, and reduction to the

lowest enlisted grade.      The Court of Criminal Appeals affirmed

the findings and sentence.       54 MJ 664 (2000).

      This Court granted review of the following issues:

      I. WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
      PREJUDICE OF APPELLANT BY DENYING THE DEFENSE’S MOTION TO
      STAY THE PROCEEDINGS UNTIL THE PANEL WAS PROPERLY SELECTED
      SO AS NOT TO INCLUDE THE MEMBERS OF THE FIRST BRIGADE WHO
      RECEIVED AN E-MAIL FROM THE BRIGADE COMMANDER, AND/OR
      ATTENDED THE RELATED BRIEFING IN WHICH THE COMMANDER STATED
      HIS INTENT TO “CRUSH” THOSE WHO DID NOT LIVE UP TO A CERTAIN
      STANDARD.

      II. WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
      PREJUDICE OF APPELLANT BY FAILING TO SHIFT THE BURDEN TO THE
      GOVERNMENT ONCE THE DEFENSE ESTABLISHED A CASE OF UNLAWFUL
      COMMAND INFLUENCE BY MAKING A WRITTEN MOTION, APPENDING AN
      INCRIMINATING E-MAIL MESSAGE TO THE MOTION, AND PROFERRING
      TESTIMONY OF A WITNESS TO A BRIEFING AT WHICH THE BRIGADE
      COMMANDER MADE INAPPROPRIATE COMMENTS ABOUT DISCIPLINE IN
      THE PRESENCE OF SEVERAL COURT MEMBERS.

      III. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN
      ATTEMPTING TO “RECREATE” THE UNLAWFUL COMMAND INFLUENCE
      HEARING THAT THE MILITARY JUDGE SHOULD HAVE CONDUCTED.

      IV. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN
      HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HER DISCRETION
      BY DENYING THE DEFENSE’S CHALLENGE FOR CAUSE AGAINST PANEL
      MEMBERS WHO RECEIVED AN E-MAIL MESSAGE FROM THEIR BRIGADE
      COMMANDER THAT CONTAINED STATEMENTS REGARDING HIS INTENT TO
      “CRUSH” THOSE WHO DID NOT LIVE UP TO A CERTAIN STANDARD.

For the reasons set out below, we remand for further proceedings.




                                      2
United States v. Stoneman, No. 01-0295/AR


                                 Background

      Appellant was a member of Headquarters and Headquarters

Company, 1st Battalion, 17th Infantry, a subordinate unit of the
1st Brigade, 6th Infantry Division (Light).    On December 21, 1997,

Colonel (COL) Brook, the brigade commander, sent an e-mail to the

brigade leadership and supporting unit commanders, notifying them

of mandatory leaders’ training on December 23, 1997.     The e-mail

informed all battalion and company commanders that he expected

them “to ensure the following happens after [his] leader

training”:

      (1) “Declare war on all leaders not leading by example, both

on and off duty,” and inform them that failure to lead by example

“will result in relief, negative [evaluation reports]; or UCMJ

action.”

      (2) Develop a unit plan for “ZERO DUIs [driving under the

influence] during the holiday period”;

      (3) “Ensure EVERY single soldier, or geographical batchelor

[sic], in the Brigade is invited over to someone’s home, or the

unit is having a special barracks function” on Christmas Day;

      (4) “Ensure all new soldiers . . . are integrated into the

unit, and NOT being treated as the ‘FNG’ [f------ new guy] prior

to Christmas.     If you don’t’ have a good integration plan for the

new soldiers, you will have a rash of problems, DUIs, etc. over

the holiday period.      Be proactive, and ensure this doesn’t

happen.”

      COL Brook then articulated his leadership philosophy,

including the following comments:




                                      3
United States v. Stoneman, No. 01-0295/AR


            I am sick of leaders who are leaders by virtue of their
            rank only. My New Years Resolution is to CRUSH all
            leaders in this Brigade who don’t lead by example, on
            and off duty. Leaders must focus on developing their
            REFERENT power, the power given to them by subordinates
            who respect them because of caring competent
            leadership, rather than their LEGAL power, which is the
            power they have by virtue of their rank.

                                          *   *   *

            I’m sick of leaders getting DUIs, abusing their
            position, being lazy, not achieving [Brigade physical
            training] standards, taking the easy way out regarding
            safety, and never going the extra mile. I’m sick of
            encountering leaders who could care less about
            soldiers, and are SELF CENTERED pukes. I am sick of
            hearing about leaders who are morally and spiritually
            bankrupt. I am declaring war on leaders like this,
            because they don’t deserve to be leaders of America’s
            sons and daughters, and they are not doing what the
            American taxpayer expects them to do.

                                          *   *   *

            . . . If leaders don't lead by example, and practice
            self-discipline, then the very soul of our Army is at
            risk. No more [platoon sergeants] getting DUIs, no
            more NCOs [noncommissioned officers] raping female
            soldiers, no more E7s coming up "hot" for coke, no more
            stolen equipment, no more "lost" equipment, no more
            approved personnel actions for leaders with less than
            260 APFT [Army physical fitness test scores], no more
            leader APFT failures at [Department of the Army]
            schools, --- all of this is BULLSHIT, and I'm going to
            CRUSH leaders who fail to lead by example, both on and
            off duty.

54 MJ at 676.

      On January 9, 1998, COL Brook sent a second e-mail, stating

that nothing in his previous e-mail was intended to suggest

specific actions for leadership failures.              He informed his

commanders that appropriate action for particular cases was

defined as “what each individual commander . . . deem[ed] so in

the exercise of independent discretion.”              COL Brook further

stated:




                                      4
United States v. Stoneman, No. 01-0295/AR


             . . . Nothing in what I have said in this or the
             earlier e-mail, or what I said at the Leader Training,
             has anything to do with what any soldier does as a
             member of a court-martial panel or as a witness before
             a court-martial. The sworn duty of any court-martial
             panel member is to follow the instructions of the
             military judge, apply law to admissible facts, and
             decide a sentence based solely on the evidence
             presented in court. Nothing said outside a
             court-martial by anybody, TO INCLUDE ME, may have any
             bearing on the outcome of any given case or sentence.

Id. at 678.

      On January 22, 1998, defense counsel submitted a motion to

the military judge asking her to stay the proceedings until all

members of the 1st Brigade were removed from the panel.    The

defense asserted that several NCOs perceived COL Brook’s message

to be “that leaders who found themselves in trouble needed to be

‘crushed.’”    The defense proffered the testimony of Staff

Sergeant (SSG) Mallerard that no one present at the leaders’

training “ha[d] any doubt what COL Brook meant to get across --

that is, crush these soldiers that get into trouble.”     The

defense asserted that the members of the brigade should be

removed from the court-martial panel for implied bias.     The

defense conceded that the unlawful command influence only
affected court members from the 1st Brigade, and not potential

witnesses.

      When appellant’s court-martial convened on January 25, 1998,

the military judge ruled that the request for a stay was

premature, because any issues involving unlawful command

influence could be addressed during individual voir dire.        During

group voir dire, five of the nine members of the panel

acknowledged seeing an e-mail regarding disciplinary problems




                                      5
United States v. Stoneman, No. 01-0295/AR


within the brigade.      The members were then questioned

individually.

      Lieutenant Colonel (LTC) Saul was COL Brook’s second in

command and had assumed command of the brigade on three occasions

in COL Brook’s absence.       He recalled that COL Brook’s first e-

mail suggested “the appearance of a lack of law and order among

certain elements of the brigade.”           He thought that the message

was directed at all enlisted members of the brigade.           He

described the leaders’ training session on December 23 as

follows:

            [A] discussion, a monologue from the brigade
            commander, in regards that a series of
            criminal acts or violations of the law, to
            include a number of driving under the
            influence or drunk driving cases; there was
            reference to a rape of a female enlisted
            soldier by a noncommissioned officer; some
            details were discussed in that case; and a
            general perception on the part of the brigade
            commander was that there was an element
            within the brigade that violation of the law
            was common.

The only guidance that LTC Saul recalled was “a tightening up of

the chain of command and enforcement of discipline and

standards.”    LTC Saul had no recollection of the second e-mail

message.

      LTC Saul told the military judge that he did not think that

COL Brook’s actions had any impact on him as a court member.           He

did not perceive COL Brook’s actions as an “exhortation to . . .

be tough in this case.”

      LTC Withers, the brigade executive officer, perceived the

first e-mail as “aimed at the leaders,” addressing “the problems

we had had with discipline,” and “urging leaders not to accept



                                      6
United States v. Stoneman, No. 01-0295/AR


substandard performance, especially by leaders.”         He recalled

that the e-mail “made a statement that leaders should scrunch or

squash, or something, NCOs especially and other officers, who

committed crimes, had a DUI, something like that.”

      LTC Withers recalled that the December 23 leaders’ training

had “[c]ertainly the same tone, the same subject matter.”         He

explained:

            The brigade had had several DUIs, there was a rash of
            DUIs; it was an attention getter, trying to get people
            to wake up and realize the seriousness of DUIs and so
            he was talking that leaders should exhibit a higher
            standard, and any leader who did something like that it
            was questionable if they should be around.

      LTC Withers perceived the second e-mail as an attempt to

clarify the first, and to make it clear that the first e-mail

“was not in any way, shape or form, intended to make us -- or to

inhibit his subordinates in the proper handling of UCMJ and other

legal matters.”     When asked if COL Brook’s actions would affect

his performance as a court member, he responded, “Not at all.”

He explained:

            Colonel Brook is a very impassioned man; he holds his
            values very high; he shoots from the hip; he knows he
            shoots from the hip. I had talked to him about that
            and a wide variety of subjects. I've been in the Army
            long enough to have seen statements like that before;
            and quite frankly I've been in the Army so long that
            I'm not really concerned at this point what my rater
            thinks; I'm going to do what I think is right, because
            that's what I've done all my career.

      LTC Moody commanded an aviation battalion that supported the

1st Brigade but was not part of it.         He stated that he probably

read the e-mail messages because he receives a courtesy copy of

brigade correspondence.       He recalled that the message “may have

had something to do with accountability, integrity.”         He stated



                                      7
United States v. Stoneman, No. 01-0295/AR


that he respects COL Brook, “but he’s not my brigade commander.”

LTC Moody was invited to the leadership training but did not

attend.

      Command Sergeant Major (CSM) Pagan was the brigade command

sergeant major.     Although he worked directly for COL Brook, he

did not participate in the drafting of the e-mail messages.           His

perception of the first e-mail was as follows:

            [J]ust trying to convey to everybody how serious these
            situations are, and that we should do everything in our
            power as leaders to make sure that we’re talking to our
            soldiers about all the pitfalls that are out there
            awaiting you, and keep these things in mind and convey
            that to the soldiers so that they’re thinking about
            that, those situations; the situation that could happen
            to them, or either -- DUIs, or putting themselves in a
            compromising situation, so forth and so on. And trying
            to prevent people from getting into trouble.

Asked whether he thought the e-mail told him what he should do

when “confronted with someone who is in trouble,” he responded,

“No, not at all.”     CSM Pagan had no recollection of the second e-

mail.

      CSM Pagan was asked to comment on the first e-mail, and he

responded:

            [H]e was thinking about a few leaders out there at
            different levels, and that he probably overreacted and
            put it on e-mail. He shot from the hip, versus talking
            to somebody else and maybe let them, kind of, see what
            he was writing and maybe say “Hey sir, you need to calm
            that down a little bit.”

      CSM Pagan believed that COL Brook sent the same message at

the December 23 leaders’ training.          He believed that the briefing

“covered all soldiers from Private to Colonel.”         However, he

thought that the tone of the briefing “was completely different.”

At the briefing, “it was an upbeat tone by [Col Brook], and it




                                      8
United States v. Stoneman, No. 01-0295/AR


was more on the verge of ‘Let me tell you how I can keep you and

your soldiers out of trouble.’”

      When the military judge asked CSM Pagan whether one of the

civilian spectators in the courtroom could be assured that he

would be a fair and impartial court member, he responded:

            Well, I've been a fair and impartial member of the
            United States Army, as well as my nation, serving for
            close to 25 years; and I'm not one to be swayed, I'm
            not one to comply with something just because somebody
            else said it. I'll stick by my guns and come to the
            conclusion that I feel is appropriate; no matter who's
            in that group, or in this members [sic] of the jury; I
            will take all the information that's given to me, make
            a rational decision, evaluate all that information, and
            I will make the best decision that I see possible with
            that information, and listening to others that have an
            opinion on that subject.


      Master Sergeant (MSG) Peele was the brigade chemical NCO.

He stated that he read some of the first e-mail, and “what [he]

got out of it was about the incidents about the drunk driving and

things like that.”      He did not think that the e-mail conveyed any

message to him that he “didn’t already have in [his] mind about

drunk driving.”     He did not think that it gave him any guidance

about being a leader.      He disagreed with the focus of the

leaders’ training.      Regarding his duties as a court member, he

told the military judge, “I don’t need a Colonel to tell me now

to do my duties, ma’am, I can do them on my own; and I think that

he could take a message from me” regarding the treatment of

soldiers in the brigade.       MSG Peele thought that racism and the

standards of treatment of soldiers in the brigade were more

appropriate issues than focusing on DUI.      Asked by defense

counsel what effect the message had on him, MSG Peele responded:




                                      9
United States v. Stoneman, No. 01-0295/AR


            Well, if you’re doing your job, sir, everyday like you
            should be doing, as I do, I feel it had no affect [sic]
            on me. It does affect me to the point of you can’t
            tell me to lead by example if you don’t do it; and
            that’s just my opinion, sir.

MSG Peele did not see the second e-mail.

      Sergeant First Class (SFC) Robbins, a member of appellant’s

battalion, did not see either e-mail, but he did attend the

leaders’ training on December 23.           He told the military judge

that he did not think the December 23 briefing had any bearing on

his court-martial duties.

      The military judge denied the motion for a stay and the

defense challenges for cause based on implied bias.           She

explained:

            I've read United States versus Youngblood, [47 M.J. 338
            (1997)], and I certainly agree with the court in that
            case that implied bias is critical and it's reviewed
            through the eyes of the public; but if it was reviewed
            through the eyes of the public the responses that the
            court members gave, if members of the public were
            sitting in the back of the courtroom and heard their
            responses given on voir dire by the members of 1st
            Brigade who have been selected to serve in this
            court-martial, I think they would see that these
            members represent the finest traditions of the United
            States Army as court members, and would certainly not
            be swayed by anything Colonel Brook might say; they
            viewed his comments as being intemperate, and I think
            that everyone heard them say loudly and clearly that
            they will discharge their responsibilities as court
            members and vote in accordance with their conscience.


      Defense counsel later challenged LTC Saul for cause on

several grounds, including his answers on voir dire about COL

Brook’s message.     The military judge granted the challenge,

explaining:

            In the interest of granting challenge[s] for
            cause liberally, based upon my observations
            as well of Lieutenant Colonel Saul, he was
            the only one that didn’t take great pains to


                                      10
United States v. Stoneman, No. 01-0295/AR


            distance himself from Colonel Brook’s
            comments; he was the only one who believed
            that, I think, the message extended to all
            soldiers, including those at the Private
            level.

       A defense challenge for cause against CSM Pagan was granted

on multiple grounds, including a recent conflict with defense

counsel.    After challenges, four members of the 1st Brigade

remained on the panel: LTC Withers, LTC Moody, MSG Peele, and SFC

Robbins.

       The Court of Criminal Appeals held that the military judge

did not err by declining to rule on the motion for a stay until

after voir dire.     54 MJ at 671.     It held that she did not abuse

her discretion by denying the implied bias challenges.       Id. at

673.    It noted that she “never articulated whether, under command

influence law, the appellant had met his initial burden to show

facts constituting unlawful command influence that were logically

connected to the court-martial, and which had the potential to

cause unfairness in the proceedings, thereby shifting the burden

of proof to the government.”        Id.; see United States v. Biagase,

50 MJ 143, 150 (1999).      Instead, the military judge based her
ruling “purely on the law of causal challenges.”       Id.   The court

below held that any error based on failure to apply the burden-

shifting mandated by Biagase was harmless.       Id.

       The court below also noted that the military judge “did not

make any specific findings of fact as to the content of the

leaders’ training or conclusions of law as to whether COL Brook’s

comments constituted unlawful command influence.”       It found this

omission harmless.      Id. at 674.




                                      11
United States v. Stoneman, No. 01-0295/AR


      The court below then conducted a de novo review of the

record to determine whether the trial was tainted by unlawful

command influence.      Based on the members’ responses during voir

dire, the court concluded that COL Brook “did not attempt to

coerce or, by any unauthorized means, influence the action” of

the court-martial. Id., quoting Art. 37, UCMJ, 10 USC § 837.       The

court agreed that COL Brook was “shoot[ing] from the hip,” that

his language was intemperate, and that his comments “may have

been inappropriate,” but it held that his comments were not

unlawful. Id.     The court below concluded “beyond a reasonable
doubt that the findings and sentence in the appellant’s case were

not affected by COL Brook’s e-mails and leaders’ training.”       Id.

                                 Discussion

      Appellant asserts that the military judge erred by failing

to stay the proceedings, by misapplying the test for implied bias

based on unlawful command influence, by failing to hold a hearing

on the issue of unlawful command influence, and by failing to

shift the burden of proof to the Government as required by

Biagase, supra.     Appellant also asserts that the court below
erred when it “recreated” the hearing that the military judge

should have conducted.      The Government asserts that the military

judge correctly denied the challenges founded on implied bias,

and that the court below correctly determined, after a de novo

review of the record, that appellant failed to establish unlawful

command influence.

      Unlawful command influence is “the mortal enemy of military

justice.”    United States v. Thomas, 22 MJ 388, 393 (CMA 1986).

On appeal, this Court reviews de novo the question whether the


                                      12
United States v. Stoneman, No. 01-0295/AR


facts constitute unlawful command influence.        United States v.

Johnson, 54 MJ 32, 34 (2000).        Once the issue has been raised,

the Government must persuade this Court beyond a reasonable doubt

either that there was no unlawful command influence or that the

proceedings were untainted.       Biagase, supra; Thomas, supra.

      In Thomas, supra at 396, this Court placed the burden on

defense counsel, trial counsel, and the military judge to “fully

question the court members during voir dire” to determine whether

a commander’s comments “had an adverse impact on the member’s

ability to render an impartial judgment.”        This Court recognized,

however, that in some cases, voir dire may not be enough, and
that witnesses may be required to testify on the issue of

unlawful command influence.

      In Youngblood, supra, relied on by the military judge in

this case, this Court held that the military judge erred by

denying challenges for cause based on unlawful command influence.

Youngblood was decided as an implied bias case, not an unlawful

command influence case.       Because this Court did not reach the

question whether unlawful command influence was raised, it did
not apply the burden-shifting analysis set out in its later

Biagase decision.     47 MJ at 339.

      In Biagase, this Court set out the analytical framework for

resolving claims of unlawful command influence.        At trial, the

initial burden is on the defense to “raise” the issue.        The

burden of proof is low, but more than mere allegation or

speculation.    The quantum of evidence required to raise unlawful

command influence is “some evidence.”        50 MJ at 150.




                                      13
United States v. Stoneman, No. 01-0295/AR


      The defense must show facts that, if true, constitute

unlawful command influence, and it must show that the unlawful

command influence has a logical connection to the court-martial

in terms of potential to cause unfairness in the proceedings.         If

the defense shows such facts by “some evidence,” the issue is

raised.   Id.

      Once the issue is raised, the burden shifts to the

Government.     Id.   The Government may show either that there was

no unlawful command influence or that any unlawful command

influence did not taint the proceedings.        If the Government

elects to show that there was no unlawful command influence, it

may do so either by disproving the predicate facts on which the

allegation of unlawful command influence is based, or by

persuading the military judge that the facts do not constitute

unlawful command influence.       The Government also may choose to

not disprove the existence of unlawful command influence but to

prove that it will not affect the proceedings.        Whichever tactic

the Government chooses, the quantum of evidence required is proof

beyond a reasonable doubt.       Id. at 151.
      Unlike the law pertaining to unlawful command influence,

there is no burden shifting in the law pertaining to challenges.

RCM 912(f)(3), Manual for Courts-Martial, United States (2000

ed.),1 places the burden of establishing the grounds for

challenge on the challenging party.         However, RCM 912(f)(3) does

not define the quantum of proof required to establish a ground


1
 This Manual provision is identical to the one in effect at the
time of appellant’s court-martial.



                                      14
United States v. Stoneman, No. 01-0295/AR


for challenge.     This Court has not addressed the quantum of proof

required under Rule 912(f)(3), and we need not precisely define

it in this case.     We are satisfied, however, that the quantum of

proof required under RCM 912(f)(3) is higher than the “some

evidence” required to raise an issue of unlawful command

influence.    Thus, a military judge’s determination that the

defense has not sustained the greater burden of establishing a

challenge under RCM 912(f)(3) does not answer the question

whether the defense has met the lesser burden of presenting “some

evidence” of unlawful command influence, thereby shifting the

burden to the Government.

      As noted by the court below, the military judge did not make

findings of fact and conclusions of law, nor did she analyze the

evidence in accordance with the Biagase framework.2    54 MJ at

673-74.   Thus, the question before us is whether the lower




2
 The dissent notes that Biagase was decided after appellant’s
trial. However, the Biagase decision, which then-Judge Crawford
joined, did not establish a new requirement for making findings
of fact and conclusions of law or otherwise announce new law; it
merely synthesized this Court’s jurisprudence and established an
analytical framework for resolving issues of unlawful command
influence. Long before Biagase, this Court recognized that
unlawful command influence involves questions of fact as well as
questions of law. Once the issue is raised, a military judge
must determine the facts and then decide whether those facts
constitute unlawful command influence. See United States v.
Gerlich, 45 MJ 309, 310-11 (1996); United States v. Ayala, 43 MJ
296, 299 (1995); United States v. Stombaugh, 40 MJ 208, 213-14
(CMA 1994). The “some evidence” standard was set out in Ayala,
supra at 300. The burden-shifting was set out in Gerlich, supra
at 310. The requirement to prove beyond a reasonable doubt that
the proceedings were unaffected by unlawful command influence was
announced in United States v. Thomas, 22 MJ 388, 394 (CMA 1986).



                                      15
United States v. Stoneman, No. 01-0295/AR


court’s de novo review of the record and its analysis under the

Biagase framework are an adequate substitute for a hearing at the

trial level and are sufficient to ensure that this case was not

tainted by unlawful command influence.      We hold that further

proceedings are necessary to determine if the court-martial was

tainted.

      In United States v. Ginn, 47 MJ 236, 242 (1997), this Court

concluded that Congress intended the Courts of Criminal Appeals

“to act as factfinder in an appellate-review capacity and not in

the first instance as a trial court.”       In this case, there was no

factfinding hearing, and no analysis under the Biagase framework
at the trial level.      As a result, there are no trial-level

findings of fact regarding the content, tone, and impact of COL

Brook’s leadership training session on December 23.      We cannot

determine if additional witnesses would shed light on the issue.

In this regard, we note that the defense proffered the testimony

of SSG Mallerard, the brigade training NCO, but the military

judge did not act on that proffer.

      Finally, the record of trial does not provide an appellate
court the opportunity to observe the demeanor of the court

members.    This Court has long recognized that, once unlawful

command influence is raised, “we believe it incumbent on the

military judge to act in the spirit of the Code by avoiding even

the appearance of evil in his courtroom and by establishing the

confidence of the general public in the fairness of the court-

martial proceedings.”      United States v. Rosser, 6 MJ 267, 271

(CMA 1979).    Accordingly, disposition of an issue of unlawful

command influence falls short if it “fails to take into


                                      16
United States v. Stoneman, No. 01-0295/AR


consideration the concern of Congress and this Court in

eliminating even the appearance of unlawful command influence at

courts-martial.”     Id.; see United States v. Ayers, 54 MJ 85, 94-

95 (2000), quoting United States v. Allen, 33 MJ 209, 212 (CMA

1991) (“[T]he appearance of unlawful command influence is as

devastating to the military justice system as the actual

manipulation of any given trial.”).

      The question whether there is an appearance of unlawful

command influence is similar in one respect to the question

whether there is implied bias, because both are judged

objectively, through the eyes of the community.        In the implied

bias area, this Court has recognized that “[o]bservation of the

member’s demeanor may inform judgments” about the public

perception of the fairness of a trial.        United States v. Downing,
56 MJ 419, 422 (2002).      While demeanor is “[a] measure of actual

bias,” it is “also relevant to an objective observer’s

consideration.”     Id. at 423.     On an issue as sensitive as

unlawful command influence, evaluation of demeanor of the court

members as well as other witnesses, viewed through the prism of
Biagase and the presumption of prejudice, is critical to evaluate

whether there is an objective appearance of unfairness.        Even if

there was 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.”       See

United States v. Wiesen, 56 MJ 172, 175 (2001).        For these

reasons, we conclude that a hearing before a military judge is

necessary to resolve appellant’s claim of unlawful command

influence.


                                      17
United States v. Stoneman, No. 01-0295/AR


                                  Decision

      The decision of the United States Army Court of Criminal

Appeals is set aside.      The record of trial is returned to the

Judge Advocate General of the Army for submission to a convening

authority for a hearing on appellant’s claim of unlawful command

influence under United States v. DuBay, 17 USCMA 147, 37 CMR 411

(1967).   If a hearing is impracticable, the convening authority

may set aside the findings and sentence and order a rehearing or

dismiss the charges.      If a hearing is conducted, the record of

trial, including the hearing, will then be transmitted to the

Court of Criminal Appeals for review under Article 66, UCMJ, 10

USC § 866.    Thereafter, Article 67, UCMJ, 10 USC § 867, shall

apply.




                                      18
United States v. Stoneman, No. 01-0295/AR

    SULLIVAN, Senior Judge (concurring):


    I agree with the majority.   This is consistent with my

position in United States v. Youngblood, 47 MJ 338, 342-43

(1997)(Sullivan, J., concurring in part and dissenting in part)

(the real issue is unlawful command influence, not jury bias).
United States v. Stoneman, No. 01-0295/AR


     CRAWFORD, Chief Judge (dissenting):

     The majority chastises the military judge because she did

not make “findings of fact and conclusions of law, nor did she

analyze the evidence in accordance with the Biagase framework.”

___ MJ at (15).   I do not find this “failure” surprising or

erroneous since the court-martial that tried appellant took

place fifteen months before this Court rendered its decision in

United States v. Biagase, 50 MJ 143 (1999), setting forth a

framework for analyzing questions of unlawful command influence.

Although the clairvoyance which the majority apparently demands

of trial judges was not present in this case, I believe the

trial judge properly applied the law in rejecting appellant’s

challenge to those members who were subjected to COL Brook’s e-

mail and December 23, 1997, leadership class.

     At the time of trial, the law was clear.   As with pretrial

publicity, see Sheppard v. Maxwell, 384 U.S. 333 (1966), the

party raising an unlawful command influence motion had to show

the impact on the jurors or panel members.   United States v.

Thomas, 22 MJ 388 (CMA 1986).   Where there was an allegation of

command influence,

          an appellant [had to] (1) ‘allege[] sufficient
          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 proximate cause of that
          [alleged] unfairness.
United States v. Stoneman, No. 01-0295/AR


United States v. Stombaugh, 40 MJ 208, 213 (CMA 1994), citing

United States v. Levite, 25 MJ 334, 341 (CMA 1987)(Cox, J.,

concurring); see also United States v. Lorenzen, 47 MJ 8, 15

(1997).

     We made it crystal clear in Thomas, supra at 396, that

           [i]n determining whether an accused’s trial
           in a contested case before court members was
           adversely affected by command influence, we first
           consider the impact that such activities and
           communications may have had on the court members.
           In this regard, we place the burden upon both
           defense and trial counsel, as well as the military
           judge, to fully question the court members during
           voir dire and to determine thereby whether any of the
           members had knowledge of the commander’s comments and,
           if so, whether the comments had an adverse impact on
           the member’s ability to render an impartial judgment.
           When required, witnesses may be called to testify on
           this issue. United States v. Karlson, 16 MJ 469 (CMA
           1983). However, we are not prepared to disqualify
           members of a court-martial panel simply because they
           were assigned or were in close proximity to the
           command where the comments were made. To do so would
           ignore the members’ oath to adhere to the military
           judge’s instructions and to determine the facts in
           accordance therewith. Cf. United States v. Garwood,
           20 MJ 148 (CMA 1985).

                             VOIR DIRE

     The judge permitted an extensive voir dire of all the

members.   In the preliminary instructions, the judge reminded

the members that their decision should be based on the law and

instructions given during the case that appellant was presumed

to be innocent and the Government had the burden of proof.

Lieutenant Colonel (LTC) Withers, LTC Saul, LTC Moody, Master



                                 2
United States v. Stoneman, No. 01-0295/AR


Sergeant (MSG) Peele, and Command Sergeant Major (CSM) Pagan

indicated they were aware of e-mail messages from the First

Brigade.   All of the members also indicated they were not “aware

of anything at all that might raise a substantial question

concerning [their] participation in this trial as a court

member.”

     On individual voir dire, LTC Saul stated that he remembered

the first e-mail message from COL Brook but did not “recall the

specifics.”    He remembered that this e-mail was aimed at

“tightening up of the chain of command and enforcement of

discipline and standards ....”    His recollection was that “there

was the appearance of a lack of law and order and discipline

among certain elements of the brigade.”    As to the “certain

elements,” he meant “enlisted personnel and noncommissioned

officers.”    He stated that he “saw the second message ... but

[did not] recall any specific points in the second message.”      He

did not read the e-mail as an “exhortation to ... be tough in

this case.”    He agreed that any decision must be based on the

evidence presented and the judge’s instructions, and that such

instructions override any information received from the brigade

commander.    He would not “bump” up the punishment, but would

base it only on the evidence presented.    As the majority notes,

LTC Saul was challenged for cause, and the military judge

granted that challenge.


                                  3
United States v. Stoneman, No. 01-0295/AR


     LTC Withers, as did LTC Saul, responded to voir dire

questions based on recollection, without that recollection being

refreshed by the e-mails.    He emphasized that the e-mails were

aimed at “urging leaders not to accept substandard

performance....”    He said the follow-up e-mail was meant to

“clarify his statement, I think the real key statement was the

one to squash people who did something wrong.    It was not in any

way, shape or form, intended to make us -- or to inhibit his

subordinates in the proper handling of UCMJ and other legal

matters.”   “[S]itting as a member,” there was nothing in the e-

mail messages that would cause him “to hesitate in fulfilling

[his] duty as a court member.”    He would not be concerned about

what COL Brook would think about his performance in this case or

any other case.    He would not be influenced by the e-mail

because

            [COL] Brook is a very impassioned man; he holds
            his values very high; he shoots from the hip; he
            knows he shoots from the hip. I had talked to
            him about that and a wide variety of subjects.
            I’ve been in the Army long enough to have seen
            statements like that before; and quite frankly
            I’ve been in the Army so long that I’m not really
            concerned at this point what my rater thinks; I’m
            going to do what I think is right, because that’s
            what I’ve done all my career.

After that response, the defense counsel had no more questions.

     As the majority notes, LTC Moody indicated that he read the

e-mail in a cursory manner and did not attend the follow-up



                                  4
United States v. Stoneman, No. 01-0295/AR


briefing.   Major (MAJ) Fields, another court member, did not

have any information about the e-mails.

     The brigade’s top noncommissioned officer, CSM Pagan,

stated that he saw a lot of e-mail on a daily basis, and that he

did not remember that e-mail conveying anything about his

responsibilities as a court member.    He saw the second e-mail

but did not recall it.    He added:

            You know, I’ve worked for quite a few brigade
            commanders since being a Command Sergeant Major,
            and knowing Colonel Brook, as well as those other
            commanders in the past; I tell you, knowing him,
            when he sent out that e-mail message and when he
            talked to soldiers he was looking after the
            welfare of the leaders, as well as the soldiers,
            and trying to keep them from getting themselves
            into trouble; and that was his thoughts on that.

                                      * * *

     MJ [MILITARY JUDGE]: Sergeant Major, it looks like
          we’ve got some civilians sitting in the back of
          the courtroom; I know that you received this
          message and have had the briefing; how can you
          assure them that you’ll be a fair and impartial
          court member?

     MBR [CSM PAGAN]: Well, I’ve been a fair and impartial
          member of the United States Army, as well as my
          nation, serving for close to 25 years; and I’m not
          one to be swayed, I’m not one to comply with
          something just because somebody else said it.
          I’ll stick by my guns and come to the conclusion
          that I feel is appropriate; no matter who’s in
          that group, or in this members [sic] of the jury;
          I will take all the information that’s given to
          me, make a rational decision, evaluate all that
          information, and I will make the best decision
          that I see possible with that information, and
          listening to others that have an opinion on that
          subject.


                                  5
United States v. Stoneman, No. 01-0295/AR



     CSM Pagan had a follow-up briefing with the noncommissioned

officers of his brigade following COL Brook’s briefing.    He

could not remember the exact words he used during the briefing,

“but it was about basically ensuring that they did the right

things, talk to their soldiers, mentored their leaders.”

Compared to the 10th Mountain Division, where he was a Battalion

Sergeant Major, the instances of misconduct in his current

brigade were “very small.”   After being read part of the e-mail,

CSM Pagan said COL Brook was shooting from the hip and

“overreacted.”   CSM Pagan further stated:

          He was really looking after the – trying to look
          after the soldiers, by making sure that he, kind
          of, emphasized to the leaders “Hey, I want you to
          be proactive, I want you to go out there and talk
          to your soldiers, I want you to make sure that
          you’re communicating with your subordinates,
          because that will keep soldiers out of trouble.”
          That’s what he really wanted to say. He was a
          little more strong in his method of delivery
          there, but....

     The military judge also sustained appellant’s causal

challenge of CSM Pagan.

     MSG Peele did not interpret the December briefing as a need

to be tough as a court member.   He thought there were more

important issues than DUI.   He received the first message but

did not read it “because [he] knew those things already.”     He

did not receive the second e-mail.   Obviously, the messages had

no effect on him.


                                 6
United States v. Stoneman, No. 01-0295/AR


     MSG Geyer, another court member, responded that he could

set aside any pretrial knowledge about the case he had gained

from the media and base his decision solely on the evidence

introduced at trial.    He did not receive the first e-mail

because he was not assigned to COL Brook’s brigade.      Although

MSG Geyer was the only noncommissioned officer not exposed to

the brigade commander’s written or oral remarks, he was

successfully challenged by the defense.

     Sergeant First Class (SFC) Robbins, a member of appellant’s

battalion, said he did not see either e-mail but he did attend a

leader’s training briefing on December 23, 1997.      As noted by

the majority, SFC Robbins stated that the session had no bearing

on his court-martial duties.

                                DISCUSSION

     The majority errs in two significant ways.      First, it

indicates that the burden on the defense is merely to present

“some evidence,” and that alone is sufficient to raise command

influence.    ___ MJ at (14).    While the majority gives no

indication whether “some” means colorable evidence or a

different evidentiary standard, Stombaugh makes it clear that

more than “some evidence” is required to shift the burden to the

Government.    40 MJ at 213.    We have previously rejected

“[command influence] in the air,” United States v. Allen, 33 MJ

209, 212 (CMA 1991), cert. denied, 503 U.S. 936 (1992), yet the


                                    7
United States v. Stoneman, No. 01-0295/AR


majority’s definition of “some evidence” would certainly

encompass such ethereal notions.       Stombaugh, however, required

an appellant to “allege[] sufficient facts which, if true,

constitute unlawful command influence” before any burden shifted

to the Government to disprove the facts or show that the facts

did not constitute command influence.       40 MJ at 213, quoting

Levite, 25 MJ at 341 (Cox, J., concurring).       Appellant has

failed to clear the first hurdle.

     Even under the Biagase standard, the defense is required to

do more than raise an allegation of unlawful command influence.

It must “show facts which, if true, constitute unlawful command

influence, and that the alleged unlawful command influence has a

logical connection to the court-martial, in terms of its potential

to cause unfairness in the proceedings.”       50 MJ at 150.

     Second, the majority stretches the holding of Thomas, 22 MJ

at 388, beyond its intended limits by implying that witnesses

are required to testify on the issue of command influence.        ___

MJ at (13).   Thomas established no such requirement.      However,

in looking at the statements given by the prospective court

members under oath during voir dire, I conclude that the trial

judge was in the best position to observe the court members’

demeanor during their examination under oath; to evaluate their

answers; and to determine who was and who was not improperly and

adversely affected by COL Brook.       That military judge’s ruling


                                   8
United States v. Stoneman, No. 01-0295/AR


denying a challenge for cause ought to be overturned only for a

clear abuse of discretion.      See United States v. Downing, 56 MJ

419, 423 (2002)(Crawford, C.J., concurring in part and in the

result); United States v. Wiesen, 56 MJ 172, 177

(2001)(Crawford, C.J., dissenting)(pet. for recon. filed Dec.

21, 2001).

     All the members swore that their decision would be based on

the evidence presented and the judge’s instructions.     Under

oath, they indicated they were not aware of anything at all that

might raise a substantial question concerning their

participation in this trial as court members.     We do not need to

dismiss their sworn responses so effortlessly, especially when

one looks at the extensive voir dire in the context of this case

and defense tactics.   After appellant’s causal challenge of all

1st Brigade members was denied, the member challenged by the

defense peremptorily (MSG Geyer) was one who did not know of COL

Brook’s e-mail.

     Finally, the majority is wrong when it criticizes the trial

judge for not making “findings of fact and conclusions of law,

nor ... analyz[ing] the evidence in accordance with the Biagase

framework.”   ___ MJ at (15).    Biagase does not require a

military judge to make findings of fact and conclusions of law.

Additionally, that rule is not to be found in any of the cases




                                    9
United States v. Stoneman, No. 01-0295/AR


from this Court that had been decided at the time of appellant’s

court-martial.

                             CONCLUSION

       The thrust of COL Brook’s e-mail, despite its bombastic

tone, was to enhance leadership, eliminate noncommissioned

officer incidents of drunk driving, encourage leaders to set a

good example, and incorporate single and recently arrived

soldiers in unit activities.    A good digest of the e-mails can

be found in the Army Court of Criminal Appeals opinion.     54 MJ

671-72.

       Notwithstanding appellant’s failure to show sufficient

facts that constituted improper command influence, the

Government “produced” evidence during voir dire by showing that

none of the e-mails had any impact on the members.    This was

reinforced by the members saying that the brigade commander was

shooting from the hip.    Three of the members testified that COL

Brook had no business telling them what their duties were as

court members, and that he (COL Brook) did not have the same set

of values as they.    See, e.g., LTC Withers’s voir dire

responses, supra at (4).    Said differently by MSG Peele when

talking about COL Brook’s December 23 briefing and email:    “I

don’t need a Colonel to tell me how to do my duties, ma’am, I

can do them on my own; and I think he could take a message from

me.”


                                 10
United States v. Stoneman, No. 01-0295/AR


     Finally, this is a good case to show the importance of

remedial action by a staff judge advocate -- the type of action

which the majority discourages with their holding.   Once the

staff judge advocate discovered that COL Brook had sent the

first e-mail to members of his command, he ensured that remedial

action was taken through the second e-mail.   The remedial action

of the second e-mail put the first e-mail in perspective.     As

COL Brook said in his second e-mail:

          Let me make something else perfectly clear.
          Nothing in what I have said in this or the
          earlier e-mail, or what I said at the Leader
          Training, has anything to do with what any
          soldier does as a member of a court-martial panel
          or as a witness before a court-martial. The
          sworn duty of any court-martial panel member is
          to follow the instructions of the military judge,
          apply law to admissible facts, and decide a
          sentence based solely on the evidence presented
          in court. Nothing said outside a court-martial
          by anybody, TO INCLUDE ME, may have any bearing
          on the outcome of any given case or sentence.

54 MJ at 678.

     Whether this case is decided under pre-Biagase law or that

set forth in Biagase, appellant has failed to prove or produce

the quantum of evidence required to raise the issue of unlawful

command influence and, thus, shift the burden to the Government

to refute the facts, to show that the facts do not constitute

unlawful command influence, or that command influence did not

taint the proceedings.

     For these reasons, I dissent.


                               11
