         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201700330
                        _________________________

                 UNITED STATES OF AMERICA
                                Appellant
                                    v.

                            JAIME ORTIZ
                  Sergeant (E-5), U.S. Marine Corps
                               Appellee
                       _________________________

    Review of Government Appeal Pursuant to Article 62, UCMJ.

         Military Judge: Colonel Matthew J. Kent, USMC.
 Convening Authority: Commanding General, 1st Marine Division,
                       Camp Pendleton, CA.
 For Appellant: Major Kelli A. O’Neil, USMC; Lieutenant George R.
                        Lewis, JAGC, USN.
      For Appellee: Lieutenant Doug Ottenwess, JAGC, USN.
                      _________________________

                       Decided 15 February 2018
                        _________________________

  Before M ARKS , J ONES , and W OODARD , Appellate Military Judges
                         _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                        _________________________

   WOODARD, Judge:
   This case is before us on a government interlocutory appeal, pursuant to
Article 62(a)(1)(A), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
862(a)(1)(A), and RULE FOR COURTS-MARTIAL (R.C.M.) 908, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2016 ed.).
   The government raises two assignments of error (AOE). First, the
government argues the military judge abused his discretion by finding the
convening authority (CA) to be an accuser in accordance with Article 1(9),
                            United States v. Ortiz, 201700330


UCMJ, 10 U.S.C. § 801(9), and dismissing, without prejudice, all charges and
specifications in the appellee’s special court-martial. Second, the government
contends this court does not have jurisdiction to review the military judge’s
ruling that the CA has an inelastic attitude towards post-trial processing,
unless we find the CA’s attitude contributed to the decision to dismiss the
charges and specifications.
    After carefully considering the record, the military judge’s essential
findings of fact and conclusions of law, and the submissions of the parties, we
conclude that the military judge did not abuse his discretion by finding the
CA to be an accuser and dismissing the charges and specifications without
prejudice. On this matter, we find that the military judge’s findings of fact
are not clearly erroneous, his analysis and application of the law to the facts
are correct, and the remedy applied is within the range of remedies available
and not an abuse of discretion. Our agreement with the military judge that
the CA is an accuser within the meaning of Article 1(9), UCMJ, and is
therefore disqualified from taking any action in the appellee’s court-martial—
to include post-trial action—renders the government’s second AOE moot.
                                      I. BACKGROUND
    The appellee is a member of First Combat Engineer Battalion, First
Marine Division (1st MarDiv), I Marine Expeditionary Force (I MEF). Major
General (MajGen) Eric M. Smith assumed command of 1st MarDiv on 22
June 2017 and published his “Commanding General’s Policy Statement on
Hazing.” Within this policy statement he withheld adjudication authority for
all hazing cases within 1st MarDiv and announced that all “substantiated
[hazing] cases will result in mandatory processing for separation.”1 He also
issued to his staff and subordinate commanders his “First Marine Division
Commanders and Staff Introduction” wherein he referred to hazing, stating,
“[m]istreat a Marine or [S]ailor and you’re gone from the team.”2
   On 11 and 12 July 2017, MajGen Smith sent a series of emails focused on
hazing within 1st MarDiv to all 1st MarDiv commanders, sergeants major,
and the 1st MarDiv staff judge advocate (SJA). In these emails, he expressed
great concern with the number and frequency of alleged hazing incidents
within 1st MarDiv, announced that hazing was his foremost issue of concern,
and directed his subordinate commanders and staff to plan for and take
specific actions to combat hazing. Further, he forcefully expressed his
displeasure with those who were accused of hazing—referring to their alleged
behavior as acts of disrespect to the Commandant of the Marine Corps and


   1   Appellate Exhibit (AE) VIII at 42; AE IX at 1.
   2   AE VIII at 32; AE IX at 1-2.


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                           United States v. Ortiz, 201700330


their fellow Marines who had recently lost their lives while in service to the
nation.
    Based upon the allegations levied against him, the appellee was placed
into pretrial confinement on 13 July 2017. On 7 August 2017, charges were
preferred against the appellee. The preferred offenses alleged that the
appellee: conspired with several fellow noncommissioned officers to violate
the Marine Corps’ hazing order; that he violated the order by hazing five
junior Marines within his unit; and that he physically assaulted two junior
Marines by striking them in the chest with his fist.3
    MajGen Smith referred the offenses to trial on 15 August 2017.4 The
appellee’s trial defense counsel filed a motion to dismiss for unlawful
command influence (UCI). Within that motion, he also argued, alternatively,
that MajGen Smith had acted as an accuser and should be disqualified from
taking further action in the appellee’s case, “including both pre-trial and
post-trial matters.”5 The military judge granted the defense motion “in part,”
finding MajGen Smith to be an accuser in accordance with Article 1(9),
UCMJ, and dismissed all charges and specifications without prejudice, noting
that the charges “may be considered for disposition by any superior [CA],
within their legal discretion.”6 Having disqualified MajGen Smith as the CA,
the military judge deemed the remaining UCI issues moot.7 The government
appealed the dismissal to this court on 7 November 2017.




   3  AE III at 29-31; AE IX at 3. Marine Corps Order (MCO) 1700.28B, dated 20
May 2013, is a punitive general order, violations of which may be punished under
Article 92, UCMJ. The appellee was charged with three specifications of Article 81,
UCMJ (conspiring to violate MCO 1700.28B), for conspiring with fellow
noncommissioned officers to haze junior Marines through forced haircuts and
pressing their rank insignia into their chest; one specification of Article 92, UCMJ
(violation of MCO 1700.28B), for ordering junior Marines to perform “planks” while
other Marines cut their hair, pressing rank insignia into junior Marine’s chests, and
requiring junior Marines to perform unauthorized physical training; and two
specifications of Article 128, UCMJ (assault consummated by battery), for striking
junior Marines on their chest with his fist.
   4   AE VIII at 53.
   5   AE II at 9.
   6   AE IX at 1 and 7.
   7   Id. at 1.


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                       United States v. Ortiz, 201700330


                               II. DISCUSSION
A. Jurisdiction
    Military appellate courts are courts of limited jurisdiction. Government
appeals are not favored and are only available upon specific statutory
authorization. United States v. Wuterich, 67 M.J. 63, 70 (C.A.A.F. 2008). Our
statutory jurisdictional authority to hear this appeal is Article 62(a)(1)(A),
UCMJ, which authorizes the government to appeal “[a]n order or
ruling . . . which terminates the proceedings with respect to a charge or
specification” in a court-martial where a punitive discharge may be
authorized. The military judge’s ruling terminated the proceeding for all
charges and specifications, and a punitive discharge was authorized for each
offense charged. See Arts. 81, 92, and 128, UCMJ. Accordingly, we have
jurisdiction to review the military judge’s determination that MajGen Smith
was an accuser and the remedy applied.
B. Article 62, UCMJ, appeal standard of review
    “In an Article 62, UCMJ, appeal, this [c]ourt reviews the military judge’s
decision directly and reviews the evidence in the light most favorable to the
party which prevailed at trial.” United States v. Henning, 75 M.J. 187, 190-91
(C.A.A.F. 2016) (citation and internal quotation marks omitted). We review a
military judge’s ruling to dismiss charges and specifications under an abuse
of discretion standard. United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F.
2010); United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).
    The abuse of discretion standard recognizes that “when judicial action is
taken in a discretionary manner, such action cannot be set aside by a
reviewing court unless it has a definite and firm conviction that the court
below committed a clear error in judgment in the conclusion it reached upon
a weighing of the relevant factors.” United States v. Houser, 36 M.J. 392, 397
(C.M.A. 1993) (citation and internal quotation marks omitted). The abuse of
discretion standard of review also “recognizes that a judge has a range of
choices and will not be reversed so long as the decision remains within that
range.” Gore, 60 M.J. at 187 (citation omitted).
C. Accuser issue
   1. Standard of review
    The question of whether a CA is an accuser under Article 1(9), UCMJ, is a
question of law we review de novo, and “we review [the military judge’s]
factfinding under the clearly-erroneous standard[.]” Henning, 75 M.J. at 191
(citation and internal quotation marks omitted). “[W]here the military judge
places on the record his analysis and application of the law to the facts,




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                        United States v. Ortiz, 201700330


deference is clearly warranted.” United States v. Flesher, 73 M.J. 303, 312
(C.A.A.F. 2014) (citations and internal quotation marks omitted).
    In contrast to our powers of review under Article 66(c), UCMJ, in an
Article 62, UCMJ, appeal, we “may act only with regards to matters of law.”
Art. 62(b); R.C.M. 908(c)(2). “When a court is limited to reviewing matters of
law, the question is not whether [this court] might disagree with the trial
court’s findings, but whether those findings are fairly supported by the
record.” Gore, 60 M.J. at 185 (citations and internal quotation marks
omitted). We are not permitted to substitute our own interpretation of the
facts for those of the military judge. United States v. Cossio, 64 M.J. 254, 256
(C.A.A.F. 2007). “If the findings are incomplete or ambiguous, the
appropriate remedy . . . is a remand for clarification or additional findings.”
United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995) (citation and
internal quotation marks omitted).
   2. The law
    Convening authorities are presumed to act without bias when taking
action upon allegations of misconduct. The accused has the burden of
rebutting this presumption. United States v. Argo, 46 M.J. 454, 463 (C.A.A.F.
1997). Thus, a CA is presumed not to be an accuser. The standard of proof
required to overcome this presumption is a preponderance of the evidence.
R.C.M. 905(c)(1).
    “An accuser may not convene a general or special court-martial for the
trial of the person accused.” R.C.M. 504(c)(1); see R.C.M. 601(c). Article 1(9),
UCMJ, defines an accuser as “an individual: (1) who signs and swears to
charges; (2) who directs that charges nominally be signed and sworn to by
another [type two accuser]; or (3) who has an interest other than an official
interest in the prosecution of the accused [type three accuser].” United States
v. Ashby, 68 M.J. 108, 129 (C.A.A.F. 2009) (internal quotation marks omitted)
(emphasis added) (alteration in original); see also United States v. Jeter, 35
M.J. 442, 445 (C.M.A. 1992); R.C.M. 601(c) and 201(b). Articles 22(b) and
23(b), UCMJ, disenfranchise any statutorily defined accuser in Article 1(9),
UCMJ, from convening a general or special court-martial, requiring instead
that “the court shall be convened by superior competent authority[.]” Jeter, 35
M.J. at 445. “[T]he prohibition against the convening of a . . . court-martial by
an ‘accuser’ was designed to protect an accused from a vindictive commander
seeking to obtain a conviction because of some personal interest in the case
and using his power as a [CA] to obtain this result.” Id. at 446.
     The test for determining whether a CA is a type three accuser, and
therefore disqualified to act as the CA in a case, is whether that CA is “so
closely connected to the offense that a reasonable person would conclude that



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                         United States v. Ortiz, 201700330


he had a personal interest in the matter.” United States v. Voorhees, 50 M.J.
494, 499 (C.A.A.F. 1999) (citations and internal quotation marks omitted).
    A CA is not per se disqualified as an accuser if he expresses disdain for a
particular type of crime or its adverse effect upon good order and discipline
within the command. United States v. Davis, 58 M.J. 100, 103 (C.A.A.F.
2003). Furthermore, “a [CA] fulfilling his or her responsibility to maintain
good order and discipline in a military organization need not appear
indifferent to crime. Adopting a strong anti-crime position, manifesting an
awareness of criminal issues within a command, and taking active steps to
deter crime are consonant with the oath to support the Constitution . . . .” Id.
(citations omitted).
    However, “[a CA] is disqualified [as an accuser] when his conduct is of a
personal rather than an official nature.” United States v. Jackson, 3 M.J. 153,
154 (C.M.A. 1977). Disqualifying personal interests includes those matters
that would directly affect “the [CA]’s ego, family, [] personal property,” and
similar personal interests. Voorhees, 50 M.J. at 499. “Misguided zeal, alone,
however, is not sufficient” to establish a personal, rather than official,
interest. United States v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986) (citation
and internal quotation marks omitted).
   “[W]hether the words used by [or actions taken by] the [CA] ma[ke] him
an accuser . . . involves an assessment of additional matters such as
demeanor, tone, and context.” Voorhees, 50 M.J. at 499 (citation omitted). In
evaluating whether a CA is a type three accuser, the military judge must
assess the unique and particular facts and circumstances of the case before
him to determine whether “a reasonable person would impute to [the CA] a
personal feeling or interest in the outcome of the litigation.” Conn, 6 M.J. at
354 (citation omitted) (alteration in original).
   3. Findings of fact
   The military judge made the following findings of fact:
          ...
       b. . . . Upon assuming command, [MajGen] Smith published
          his “Commanding General’s Policy Statement on Hazing,”
          . . . stat[ing] that “[w]ithin the [1st MarDiv], I will
          personally adjudicate all hazing cases, and all
          substantiated cases will result in mandatory processing for
          separation.”
       c. . . . [MajGen] Smith issued his “[1st MarDiv] Commanders
          and Staff Introduction” . . . . [in which] he stated “[a]ll
          hazing cases come to me. Mistreat a Marine or [S]ailor and


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                 United States v. Ortiz, 201700330


   you’re gone from this team.” . . . Under the heading “SOME
   FINAL POINTS”, [sic] [MajGen] Smith stated “I cannot
   over-emphasize how seriously I take treatment of our
   Marines. We are full fledged family members and no one
   has to prove anything to anyone.” Under the heading
   “RELATIONSHIPS”, [sic] [MajGen] Smith writes “Each
   Marine or [S]ailor is like one of my sons or daughters.”
d. On 11 July 2017, [MajGen] Smith sent an email to all
   commanders and all sergeants major in the [1st MarDiv]
   with the subject: UNSCHEDULED COMMANDERS’
   CALL. In the email, he stated “[w]e have 5 hazing
   allegations this week . . . [which is] a red star cluster for
   me. Hazing is THE single biggest issue I have, and that
   word does not seem to be getting down to all hands.” Also,
   he states “I’m huddling up the Div leadership to determine
   how to tamp this brush fire down before it takes off into a
   full fledged forest fire. That said, each of these events
   allegedly happened in our battalion areas. That tells me we
   are not providing the supervision required and those who
   would haze have no fear of reprisal or being caught. That
   stops today.” [MajGen] Smith also indicates: “[t]his is a
   commander issue. Come ready to talk about actions being
   taken and supervision being provided to ensure the tribe
   knows who is actually in charge here (answer, not LCpl
   Schmukateli).” Additionally, in this email to all
   commanders and all sergeants major, he addressed his
   [SJA] saying, “Judge, let’s talk in the AM about pretrial
   confinement. If I have individuals retaliating (one
   allegation) then they are by definition a danger to my
   Marines.
e. . . . [O]n 12 July 2017, [MajGen] Smith sent a follow-up
   email . . . with    subject:    UPDATE       TO      HAZING
   ISSUE, . . . direct[ing] several new requirements for those
   standing duty and also specific timelines for investigation of
   reported hazing incidents. In the email, [MajGen] Smith
   stated his intent was to “. . . change the culture of our
   NCOs . . .” and “[i]f our NCO corps . . . would like to have
   more time to themselves, then supervision will go up and
   they’ll put an end to this crap.” Amongst other things,
   [MajGen] Smith directed in this email that: “ . . . [d]uties
   are a 24 hour post (NON sleeping) . . .[.]” [MajGen] Smith
   also stated “[i]f NCIS/CID is involved, I don’t intend to wait


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                   United States v. Ortiz, 201700330


     for their investigation for the command to take
     action[.]” . . . “[T]he Marine Corps owns the barracks, not a
     few salty LCpls who probably can’t fight their way out of a
     wet paper sack. We’re the [1st MarDiv], victors at
     Guadalcanal, and we’re reduced to dealing with jackassery
     from a few LCpls who think they are in charge. That will be
     proven wrong asap. We have 12 dead Marines in a KC-130
     crash . . . and these few LCpls who haze can’t even pay
     them the respect our Commandant has asked
     for . . . [.]” “[M]y assessment is that I’ve just been flipped
     the bird by lots of LCpls, so I’m headed there [sic] way to
     demonstrate this is an unwise [course of action] . . . [.]” In
     concluding this email to all commanders and sergeants
     major in the [1st MarDiv], he stated “I don’t plan to focus
     on anything else until we solve this issue. I’ll soon have to
     direct this for each of you (i[.]e[.] training will pause) if the
     problem isn’t rectified.”
f.   The Accused was placed into pre-trial confinement for
     hazing allegations on 13 July 2017. [Twenty] other Marines
     from [1st MarDiv] were also placed into pretrial
     confinement on 13 July 2017 for alleged hazing related
     incidents. Charges were preferred against the accused on 7
     August 2017.
g. In the following weeks, . . . [MajGen] Smith published his
   “Commanding General’s Supplemental Guidance on
   Hazing.” In this document, he states amongst other things
   that, “I have a strong personality and am in a position of
   authority, so I am obligated to ensure that none of you
   interpret my message against hazing as directing any
   specific outcome for any particular case[.]” “I do not require
   or expect a specific disposition, outcome, or sentence in any
   administrative or military justice case,” and “I will continue
   to lawfully influence the behavior of our Marines by stating
   forcefully and clearly that misbehavior of the magnitude of
   hazing, drugs, and sexual assault are unacceptable and
   degrade our combat readiness.”
h. On 16 August 2017, [MajGen] Smith sent another email to
   all Commanders which included the following language,
   “Legal. I appreciate the hard work to provide justice to our
   Marines (those accused of violations and those who were
   the victims of violations). It’s important that all hands


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                           United States v. Ortiz, 201700330


             understand the standards, as set forth in our UCMJ and in
             Division policies will be upheld. . . . I’m looking [sic] justice.
             While I am trying to positively influence the behavior of our
             Marines, I’m not trying to influence your decisions
             regarding any particular case. We are all legally and
             morally bound to adjudicate each case individually,
             regardless of what any of us thinks ‘higher HQ wants’.8
    Having carefully examined the record of trial and scrutinized the military
judge’s findings of fact, we find that the military judge’s findings of fact are
not clearly erroneous and are fairly supported by the record. See Gore, 60
M.J. at 185. Despite the military judge making no findings of fact regarding
MajGen Smith’s affidavit,9 this does not render his findings of fact incomplete
or ambiguous. See Lincoln, 42 M.J. at 320. They do not leave unanswered “an
essential predicate question for deciding whether or not he correctly
determined” that a reasonable person would conclude that MajGen Smith
had a personal, rather than official, interest in the matter. United States v.
Kosek, 41 M.J. 60, 63 (C.M.A. 1994).
   4. Application of the law to the facts
    In his ruling, the military judge considered the demeanor, tone, and
context of MajGen Smith’s statements and actions. Additionally, in his
analysis, he correctly applied the law—Article 1(9), UCMJ, R.C.M. 504(c)(1)
and 601(c), and the opinions of Voorhees, Jeter, Jackson, and Davis—to the
facts when finding that a reasonable person would impute to MajGen Smith a
disqualifying personal, rather than official feeling or interest in the outcome
of the case, thereby rendering him a type three accuser.
    After recognizing and considering the otherwise permissible expressions
of MajGen Smith’s command powers and referencing the findings upon which
he based his conclusions, the military judge concluded that:
         [b]y invoking the storied history of the [1st MarDiv], by
         personally maligning those accused of crimes ([Lance
         Corporals] engaged in jackassery who can’t fight their way out
         of a wet paper sack), by conflating their alleged misconduct
         with a totally unrelated, tragic mishap (12 dead Marines in a
         KC-130 crash), by casting their behavior as an act of disrespect
         towards the Commandant of the Marine Corps, by describing
         each Marine as like his son or daughter, by advising his
         subordinates that “[h]azing is THE single biggest issue I


   8   AE III at 1-3.
   9   AE VIII at 53-54.


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                            United States v. Ortiz, 201700330


         have . . .” and threatening to halt training across the Division
         to address it personally if those subordinates do not rectify it,
         by continually directing his subordinates to drive this issue
         home to every Marine, by expressing contempt and impatience
         for the normal investigative process, and by stating he’s been
         flipped the bird and is now going to demonstrate this was
         unwise, a reasonable observer would conclude that the [CA]’s
         ego is closely connected to the offense, and thus he has a
         personal interest in the matter.10
   In reviewing the military judge’s conclusions of law de novo, we must
determine for ourselves whether a reasonable person would impute to
MajGen Smith a personal, rather than official, feeling or interest in the
outcome of the appellee’s case. In doing so, we consider the demeanor, tone,
and context of the totality of his actions and statements related to hazing.
    Like the military judge, we recognize that many of the actions and
statements of MajGen Smith were lawful—official in nature—expressions of
his command authority. For example, his withholding of adjudication
authority for hazing cases and expressions of disdain for hazing and its
adverse effects upon operational readiness and good order and discipline
within 1st MarDiv are clearly permissible exercises of official command
authority. His expressions of paternalistic concerns for those under his
command—which harken back to Lieutenant General John A. Lejuene’s
observations and lessons on Marine Corps leadership—are also permissible.
However, MajGen Smith’s official actions and statements went substantially
beyond this type of permissible engagement and leadership.
    MajGen Smith’s statements suggest that he was personally offended by
those alleged to have violated his hazing policy. He repeatedly emphasized
that he would show those accused of hazing who was really in charge. He was
unwilling to wait for the law enforcement investigative process to conclude
before taking action against those accused of hazing. He equated the actions
of those accused of hazing as a show of disrespect to the Commandant of the
Marine Corps and their fellow Marines who had died while in service to the
nation. He threatened to shut down all operational training in 1st MarDiv in
order to address hazing if it continued. And most troubling, he let everyone
know that he was personally offended by those who were accused of hazing,
because they had “just . . . flipped [him] the bird” and he was headed their
way to show them how unwise that decision and action was within his
command.11 The timing of all of these actions coincided with the appellee and

   10   AE IX at 6-7 (citing Voorhees, 50 M.J. at 499).
   11   AE VIII at 40; AE IX at 2-3, and 6-7.


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                       United States v. Ortiz, 201700330


twenty other Marines being placed into pretrial confinement on allegations of
hazing. Having considered the totality of the actions taken and statements
made by MajGen Smith—and considering their demeanor, tone, and
context—we agree with the military judge’s conclusion that a reasonable
person would impute to MajGen Smith a disqualifying personal, rather than
official, feeling or interest in the outcome of the appellee’s case.
D. Remedy applied
    Dismissal of charges and specifications is a “drastic remedy” requiring
courts to “look to see whether alternative remedies are available.” Gore, 60
M.J. at 187. Upon the determination that MajGen Smith was an accuser in
the appellee’s court-martial, MajGen Smith was statutorily disqualified from
convening the appellee’s special court-martial. Art. 23(b), UCMJ; R.C.M.
504(c)(1).. Because the charges and specifications against the appellee had
already been referred by MajGen Smith to a court-martial that he had
convened, the most logical and practical remedy available to the military
judge was dismissal of the charges and specifications in order to remove
MajGen Smith as the CA. The military judge was without authority to simply
withdraw the offenses from the court-martial as only MajGen Smith or a
competent superior authority had the ability to do so. See R.C.M. 604(a).
   The military judge had two dismissal remedy options—dismissal with
prejudice or dismissal without prejudice. He applied the less draconian of the
two. By dismissing the charges and specifications without prejudice, the
military judge did not foreclose the I MEF commander or some other superior
competent authority from convening a court-martial to try the appellee. See
Arts. 22(b) and 23(b), UCMJ.
    Based upon the military judge’s finding that MajGen Smith was a type
three accuser, we find that dismissal of the charges and specifications
without prejudice was not an abuse of discretion. This discretionary judicial
action was “within the range of remedies available and not otherwise a clear
error in judgment.” Gore, 60 M.J. at 189.
                              III. CONCLUSION
   The appeal of the United States under Article 62, UCMJ, is denied.
   Senior Judge MARKS and Judge JONES concur.
                                      For the Court




                                      R.H. TROIDL
                                      Clerk of Court


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