                                    IN THE CASE OF


                            UNITED STATES, Appellee

                                            v.


                          Holly M. BALDWIN, Captain
                             U.S. Army, Appellant


                                     No. 00-0104


                             Crim. App. No. 9800230

        United States Court of Appeals for the Armed Forces

                            Argued October 10, 2000

                           Decided January 16, 2001

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

                                        Counsel

For Appellant: Alison Ruttenberg (argued); Captain Sean Park (on brief).



For Appellee: Captain Paul T. Cygnarowicz (argued); Colonel David L. Hayden,
     Lieutenant Colonel Edith M. Robb, and Major Anthony P. Nicastro (on
     brief).




Military Judge:   Keith H. Hodges

            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Baldwin, 00-0104/AR


    Judge SULLIVAN delivered the opinion of the Court.


    During the fall of 1997 and in February of 1998, appellant

was tried by a general court-martial composed of officer members

at Fort Bliss, Texas.    Contrary to her pleas, she was found

guilty of two specifications of larceny, conduct unbecoming an

officer, and two specifications of service-discrediting conduct

(mail tampering and obstruction of justice), in violation of

Articles 121, 133, and 134, Uniform Code of Military Justice, 10

USC §§ 921, 933, and 934, respectively.    The military judge then

dismissed the two larceny specifications as multiplicious with

the remaining offenses, and the members sentenced appellant to a

dismissal, 1 year's confinement, and total forfeitures on

February 6, 1998.    The convening authority on May 19, 1998,

approved this sentence, and the Court of Criminal Appeals

affirmed on October 1, 1999.



    On May 19, 2000, this Court granted review on the following

two issues of law:



          I. WHETHER THE CONVENING AUTHORITY
          EXERCISED UNLAWFUL COMMAND INFLUENCE OVER
          THE PROCEEDINGS BY REQUIRING THE COURT
          MEMBERS, IN THE MIDDLE OF THE TRIAL, TO
          ATTEND AN OFFICER PROFESSIONAL DEVELOPMENT
          PROGRAM WHERE “APPROPRIATE” PUNISHMENTS
          FOR OFFICER COURT-MARTIAL DEFENDANTS WAS
          DISCUSSED.

          II. WHETHER APPELLANT IS ENTITLED TO
          RELIEF ON SENTENCE AS REDRESS FOR THE
          GOVERNMENT’S VIOLATIONS OF ARTICLE 55
          WHILE APPELLANT WAS IN POST-TRIAL
          CONFINEMENT.


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United States v. Baldwin, 00-0104/AR




We hold that appellant is not entitled to relief based on her

complaints about the alleged conditions of her post-trial

confinement.   See United States v. Avila, 53 MJ 99 (2000).

Nevertheless, we set aside the decision of the appellate court

below and remand this case for a DuBay 1 hearing on the issue of

unlawful command influence.   See United States v. Dykes, 38 MJ

270 (CMA 1993).



    Nine months after her court-martial, appellant signed a

statement and later filed it with the Court of Criminal Appeals.

See United States v. Grostefon, 12 MJ 431 (CMA 1982).   It said:



                        AFFADAVIT [sic]
                       November 20, 1998

          I, Holly M. Baldwin, would like to make
          the following statement. Shortly after I
          was transferred from Fort Lewis to Fort
          Bliss (fall 1997), Ft. Bliss was having a
          Family Values Week. One of the Officer
          Professional Development programs mandated
          by Commanding General Costello was one
          directed at Ethics. At that particular
          OPD, one of the topics discussed was an
          incident that happened with three of the
          Officers in the 31st ADA BDE that were
          being court-martialed. The address
          included comments that the court-martial
          sentences were too lenient and that the
          minimum sentence should be at least one
          year and that Officers should be punished
          harsher than enlisted soldiers because
          Officers should always set the example and
          be above reproach. The day after this OPD
          one of the officers from the 31st was set
          to be sentenced. I believe his name was
          Major Brennan. I attended this OPD, but
          didn't learn of the sentencing until a

1   United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).

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United States v. Baldwin, 00-0104/AR


          discussion I had with his attorney, Mr.
          Jim Maus. He is an attorney in my
          civilian attorney’s (Jim Darnell) law
          office in El Paso, TX. Mr. Maus was Major
          Brennan’s civilian counsel. Mr. Maus also
          informed me that this type of OPD was
          inappropriate and that it could be
          considered jury tampering and he was
          filing an appeal on Major Brennan’s behalf
          stating such.

          On the day of my conviction and
          sentencing, the final part of the trial
          was delayed for another OPD that was
          mandatory for all Officers on post. This
          OPD dealt with the situation Lt. Kelly
          Flynn was embroiled [sic]. The theme
          about this OPD was that she was not
          punished as she should have been and that
          she had basically gotten over. It was
          then stated she should not have been
          allowed to resign, but should have been
          court-martialed. I would also like to
          note here that I submitted a Resignation
          for Good of Service [sic] on or about 1
          May 97 and it was held and never sent up
          as the regulation states. That afternoon
          after the officers on my panel went to the
          OPD, I was convicted and sentenced to 1
          year at Ft. Leavenworth. It should also
          be noted that 4 of the officers on my
          panel were in the same rating chain. They
          included the Brigade Commander, Brigade
          Deputy Commander, the HHC Company
          Commander and another BDE Primary Officer.

          I swear the above mentioned statement is
          true to the best of knowledge.

          Signed Holly Morris Baldwin
          Date   November 20, 1998

(Emphasis added).



    Appellant argued that “her sentence to one year in

confinement and the rejection of her request for Resignation for

the Good of the Service was the result of these actions, which

clearly constitute unlawful command influence in this case.”   The



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United States v. Baldwin, 00-0104/AR


Government did not oppose this motion to file, but in its final

brief it simply asserted that “it [appellant’s claim] lacks

merit.”   The Court of Criminal Appeals summarily affirmed this

case.



                            ___ ___ ___

                                 I

    The Government argues that appellant’s post-trial claim of

unlawful command influence should be denied because she “has

failed to meet her threshold burden of production in this case.”

Final Brief at 7.   It further contends that “[a]ppellant’s own

ambiguous, self-serving, and unsubstantiated declaration does not

establish a viable claim of unlawful command influence.”

Moreover, it notes that “appellant never raised this issue at

trial” nor made any “effort to bring this allegation to the

military judge’s attention and conduct some minimal voir dire

before findings and sentence deliberations.”   Id.   We conclude

that none of these reasons legally justifies the lower appellate

court’s summary denial of appellant’s post-trial claim of

unlawful command influence. 2



    Article 37, UCMJ, 10 USC § 837, states:


2 We reject the Government’s claim of waiver. We have never
held that an issue of unlawful command influence arising during
trial may be waived by a failure to object or call the matter to
the trial judge’s attention. Cf. United States v. Weasler, 43 MJ
15 (1995) (pretrial agreement initiated by accused waived any
objection to unlawful command influence in the preferral and
referral of charges); United States v. Richter, 51 MJ 213, 224
(1999).


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United States v. Baldwin, 00-0104/AR



           § 837. Art. 37.   Unlawfully influencing
           action of court
            (a) No authority convening a general,
          special, or summary court-martial, nor any
          other commanding officer, may censure,
          reprimand, or admonish the court or any
          member, military judge, or counsel
          thereof, with respect to the findings or
          sentence adjudged by the court, or with
          respect to any other exercises of its or
          his functions in the conduct of the
          proceedings. No person subject to this
          chapter may attempt to coerce or, by any
          unauthorized means, influence the action
          of a court-martial or any other military
          tribunal or any member thereof, in
          reaching the findings or sentence in any
          case, or the action of any convening,
          approving, or reviewing authority with
          respect to his judicial acts. The
          foregoing provisions of the subsection
          shall not apply with respect to (1)
          general instructional or informational
          courses in military justice if such
          courses are designed solely for the
          purpose of instructing members of a
          command in the substantive and procedural
          aspects of courts-martial, or (2) to
          statements and instructions given in open
          court by the military judge, president of
          a special court-martial, or counsel.

(Emphasis added.)



    We have long held that the use of command meetings to

purposefully influence the members in determining a court-martial

sentence violates Article 37, UCMJ. United States v. Levite, 25

MJ 334, 339 (CMA 1987); United States v. Cruz, 25 MJ 326, 329

(CMA 1987); United States v. Thomas, 22 MJ 388, 393 (CMA 1986);

United States v. McCann, 8 USCMA 675, 676, 25 CMR 179, 180

(1958).   Moreover, we have also held that the mere “confluence”

of the timing of such meetings with members during ongoing


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United States v. Baldwin, 00-0104/AR


courts-martials and their subject matter dealing with court-

martial sentences can require a sentence rehearing.       See United

States v. Brice, 19 MJ 170, 172 n.3 (CMA 1985).



    Here, appellant avers that there were two command officer

meetings before and during her court-martial, which she and the

officers of her panel attended.       She also avers that various

court-martial situations on base and in the Air Force at large

were discussed.   Furthermore, she asserts that comments were made

that court-martial sentences were too lenient; that officers

should always be punished more harshly than enlisted persons; and

that the minimum sentences should be 1 year.       Finally, appellant

points out that she, an officer, subsequently received a 1-year

sentence at her court-martial.    If appellant’s averments are

true, then as in Brice, a confluence of timing and subject matter

would exist.



    The Government contends, however, that appellant’s self-

serving averments are not legally sufficient (or competent) to

raise her post-trial claim.   We disagree.      In United States v.

Ayala, 43 MJ 296, 300 (1995), this Court held that “[t]he quantum

of evidence necessary to raise unlawful command influence is the

same as that required to submit a factual issue to the trier of

fact.”   While not particularly delineating the proof required, we

have generally held that it must be more than “mere speculation.”

See United States v. Biagase, 50 MJ 143, 150 (1999).       Here,

appellant’s post-trial statement was based on her own



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United States v. Baldwin, 00-0104/AR


observations (cf. United States v. Ruiz, 49 MJ 340, 348 (1998)

(no abuse of discretion for convening authority to refuse to

order post-trial hearing on basis of unsubstantiated assertions

of unlawful command influence by counsel)), and it was detailed

in nature.    Cf. United States v. Johnston, 39 MJ 242, 244 (CMA

1994) (must be more than a bare allegation).    Moreover, the

record of trial, which contains an unexplained decision to delay

any sessions on the date in question until the early afternoon,

may be viewed as tending to corroborate appellant’s allegation

that there was a command meeting at that time.    In the absence of

any post-trial submission from the Government, we conclude

appellant’s allegations in this context are sufficient to raise a

post-trial complaint of unlawful command influence.    See United

States v. Ayala, supra (some evidence to which a member might

reasonably attach credit); see generally United States v. Ginn,

47 MJ 236, 248 (1997) (third principle:    “if the affidavit is

factually adequate on its face to state a claim of legal error. .

. .”).



    Although we reject the Government’s legal insufficiency

claim, we are reluctant to order relief without a complete record

concerning appellant’s claim.   A full development of the material

facts surrounding these command meetings and their effect on

appellant’s court-martial is required.    See United States v.

Dykes, 38 MJ 270; see also United States v. Fricke, 53 MJ 149,

155 (2000).   Accordingly, a DuBay hearing should be ordered.     Id.




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United States v. Baldwin, 00-0104/AR


                                II

    We also must address appellant’s claim that her post-trial

confinement violated Article 55, UCMJ, 10 USC § 855.   Her claim

is that “[w]hile confined at the USDB, [she] and her unborn child

were intentionally placed at risk by knowingly exposing [them] to

dangerous levels of lead, industrial chemicals and fumes and

potentially contaminated food and water.   [She] was denied proper

prenatal care, and shackled and hand-cuffed without cause.”

Final Brief at 13.   Appellant asks that we set aside her adjudged

and automatic forfeitures as a remedy for her unlawful post-trial

punishment. 3



    We initially note that appellant asserts that she was 2

months pregnant when she was confined at the United States

Disciplinary Barracks on February 11, 1998.   She further asserts

that she remained confined there until June of 1998, when she was

transferred to the Federal Bureau of Prisons Facility in Fort

Worth, Texas.   Finally, she asserts that she was released on

August 22, 1998, 3 months before her minimum release date because

of action by the Army Clemency and Parole Board.   It is conceded

that her baby was born after her release from confinement, and

there is no claim that either she or her baby was actually




3 We reject appellant’s shackle and handcuff argument because
she has not provided sufficient evidence to demonstrate that
correction officials’ use of shackles went beyond what was
reasonable to assure safe control of a new inmate. See Art. 55,
UCMJ (“The use of irons, single or double, except for the purpose
of safe custody, is prohibited.”).


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United States v. Baldwin, 00-0104/AR


injured as a result of the alleged conditions of her post-trial

punishment.



    We conclude that appellant has not demonstrated that the

averred conditions of her confinement amounted to a violation of

Article 55, UCMJ.   See United States v. Avila, 53 MJ at 101. 4

As noted above, there is no showing that she was actually pained

or injured as a result of these conditions.   The absence of a

showing of pain or injury, as well as the absence of a showing of

punitive intent on the part of prison officials, undermine her

legal claim.   See United States v. Sanchez, 53 MJ 393, 395-96

(2000).



    In addition, in United States v. Avila, supra at 102, this

Court rejected a convicted prisoner’s claim of improper

punishment under Article 55, UCMJ, and under the Eighth Amendment

where the “[a]ppellant ha[d] not demonstrated that the conditions

of his confinement were more adverse than those faced by civilian

prisoners whose claims of cruel and unusual punishment have been

rejected by other courts.”   In view of relevant federal case law,

we conclude that appellant’s claim does not reach that level.

See Coleman v. Rahija, 114 F.3d 778, 784-85 (8th Cir. 1997) (2-

hour delay of medical services causing prisoner in labor extreme


4 We find it unnecessary for disposition of this case to
determine whether appellant exhausted her administrative remedies
to complain about her confinement conditions, to include her
assertion that Army regulations prevented her from filing an
Article 138, UCMJ, 10 USC § 938, complaint. See generally United
States v. Miller, 46 MJ 248 (1997); United States v. Coffey, 38
MJ 290 (CMA 1993).

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United States v. Baldwin, 00-0104/AR


pain and suffering is legally sufficient); Archer v. Dutcher, 733

F.2d 14, 15 (2d Cir. 1984) (intentional delay in treatment

purposefully causing extreme pain and later miscarriage is

legally sufficient).



    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 limited hearing on the issue of command

influence.   At the conclusion of the hearing, the judge will make

specific findings of fact on that issue.   A verbatim record of

the proceedings will be submitted after authentication to the

Court of Criminal Appeals for further review.   Thereafter,

Article 67(a)(3), UCMJ, 10 USC § 867(a)(3), shall apply.




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