                            UNITED STATES, Appellee

                                           v.

                      Adam D. DOUGLAS, Senior Airman
                         U.S. Air Force, Appellant

                                     No. 09-0466
                             Crim. App. No. S31059

       United States Court of Appeals for the Armed Forces

                            Argued October 14, 2009

                          Decided February 23, 2010

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. BAKER and STUCKY, JJ., each
filed a separate dissenting opinion.


                                        Counsel

For Appellant: Terri R. Zimmermann, Esq. (argued); Captain
Marla J. Gillman (on brief); Major Lance J. Wood and Major
Shannon A. Bennett.

For Appellee: Major Coretta E. Gray (argued); Colonel Douglas
P. Cordova, Lieutenant Colonel Jeremy S. Weber, and Gerald R.
Bruce, Esq. (on brief).


Military Judge:       Nancy J. Paul




          THIS   OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Douglas, No. 09-0466/AF


     Judge RYAN delivered the opinion of the Court.

     In this case the military judge found unlawful command

influence and then crafted a remedy in which Appellant not only

appeared to acquiesce but actively participated.   The military

judge also gave Appellant a continuance to avail himself of the

remedy and then inquired as to whether Appellant wished to raise

any further issues on the matter.    Appellant raised none.

Appellant now alleges that the military judge reversibly erred

by crafting a remedy for unlawful command influence instead of

dismissing the charges against him.1   We disagree, and hold that

the military judge’s decision to craft a remedy was within the

bounds of her discretion.

     If the record disclosed that the reasonable remedy had been

implemented in full, Appellant’s participation in and apparent

acquiescence at trial to the remedy crafted and Appellant’s

disavowal of any claim of ineffective assistance of counsel

would end the inquiry.   However, because the record does not

disclose whether the remedy crafted by the military judge was

actually implemented in full, under the facts of this case we

devolve to the ordinary test whether unlawful command influence

1
  On Appellant’s petition, we granted review of the following
issue:

     WHETHER THE MILITARY JUDGE REVERSIBLY ERRED WHEN SHE
     DID NOT DISMISS THE CHARGES AND SPECIFICATIONS AFTER
     SHE FOUND THAT UNLAWFUL COMMAND INFLUENCE EXISTED IN
     THIS CASE.

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United States v. Douglas, No. 09-0466/AF


deprived Appellant of access to character witnesses.    United

States v. Gleason, 43 M.J. 69, 73 (C.A.A.F. 1995) (explaining

the government’s burden to establish beyond a reasonable doubt

that defense access to witnesses was not impeded by unlawful

command influence).   We are not convinced beyond a reasonable

doubt that Appellant was not thus prejudiced.    United States v.

Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999) (finding beyond a

reasonable doubt the correct quantum of proof applicable to

issues of unlawful command influence).     Accordingly, we overturn

the United States Air Force Court of Criminal Appeals.

                              I.   Facts

       A special court-martial composed of a military judge

sitting alone convicted Appellant, contrary to his pleas, of

failing to go to his appointed place of duty at the time

prescribed, violating a lawful general regulation, dereliction

of duty, making a false official statement, distribution of

methamphetamine, carnal knowledge, and sodomy of a child under

the age of sixteen years, in violation of Articles 86, 92, 107,

112a, 120, and 125, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 886, 892, 907, 912a, 920, 925 (2000), respectively.

       The sentence adjudged by the military judge and approved by

the convening authority included a bad-conduct discharge,

confinement for twelve months, and reduction to the grade of

E-1.   Appellant was given sixty days of confinement credit to


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United States v. Douglas, No. 09-0466/AF


compensate for illegal pretrial punishment.   The CCA found no

prejudicial error and affirmed.   United States v. Douglas, No.

ACM S31059, 2009 CCA LEXIS 41, at *32, 2009 WL 289705, at *11

(A.F. Ct. Crim. App. Jan. 28, 2008) (unpublished).

     The charges at issue in this appeal stem from Appellant’s

conduct when he was stationed as a military recruiter in Butte,

Montana.   Appellant, at the time a senior airman (SrA), was

supervised by Master Sergeant (MSgt) William Bialcak, the senior

recruiter at the Butte recruiting office.    In December 2003, an

investigation into Appellant’s alleged misconduct began.    MSgt

Bialcak heard of the investigation and, on May 6, 2004, ordered

Appellant not to contact any witness who was part of the ongoing

investigation into his alleged misconduct.    MSgt Bialcak issued

a second order on May 11, 2004, prohibiting Appellant from

contacting any members of his unit for non-work-related reasons

without MSgt Bialcak’s prior approval.   While the investigation

was ongoing, MSgt Bialcak openly disparaged Appellant, expressed

his certainty of Appellant’s guilt to co-workers within the

recruiting station and surrounding federal building, and

intimidated potential witnesses from providing character

references for Appellant.   MSgt Bialcak also intimidated

Appellant into not filing a report with the Inspector General

regarding these actions.




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United States v. Douglas, No. 09-0466/AF


     On August 16, 2005, Appellant moved to dismiss the charges

and specifications against him on the ground that MSgt Bialcak’s

orders and actions constituted unlawful command influence by

creating a hostile environment that made it unlikely that

Appellant’s colleagues would speak on his behalf.2   On August 18,

2005, the motion to dismiss was heard during an Article 39(a),

UCMJ, 10 U.S.C. § 839(a) (2000), session.   After reviewing the

evidence presented, the military judge examined the effect of

MSgt Bialcak’s two May 2004 no-contact orders and found that

although “there was no direct evidence the Accused was hindered

in presenting a defense or that the outcome of his court-martial

[was] affected by these orders,” MSgt Bialcak’s orders had the

potential to impact Appellant’s “ability to collect character

statements on his behalf” from his co-workers.   The military

2
  The prohibition against unlawful command influence arises from
Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2006), which provides
in relevant part:

     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 exercise of its or
     his functions in the conduct of the proceeding. 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.



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United States v. Douglas, No. 09-0466/AF


judge next examined the effect on the court-martial of MSgt

Bialcak’s “negative attitude and unpleasant demeanor toward the

Accused.”   She found that MSgt Bialcak’s behavior resulted in “a

hostile atmosphere” within both the recruiting office and the

federal office building in which it was housed.   She identified

three co-workers who had been affected by MSgt Bialcak’s

behavior:

     Mrs. Tomlinson [one of MSgt Bialcak’s subordinates]
     testified that she did not submit a statement on the
     Accused’s behalf, which would have been favorable if
     she had done so, because she was afraid that MSgt
     Bialcak would be angry with her . . . . There was
     testimony that SSgt Austin [another of MSgt Bialcak’s
     subordinates] . . . was apprehensive about providing a
     character statement on his behalf. Don Rose [who
     maintained the federal building where MSgt Bialcak and
     SrA Douglas worked] also testified that he felt that
     there would be negative consequences should he provide
     a character statement. These witnesses testified that
     they, and others they knew of, were discouraged from
     providing character statements for the Accused because
     of possible repercussions from MSgt Bialcak.

     Based on these findings of fact, the military judge

concluded that MSgt Bialcak’s actions resulted in unlawful

command influence by discouraging witnesses from providing

character statements on Appellant’s behalf.   However, the

military judge concluded that although the evidence showed

unlawful command influence that could affect Appellant’s

sentence, “the evidence was not sufficient to show that this

unlawful command influence would potentially affect the findings

of the Accused’s court-martial.” (emphasis added).   The motion


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United States v. Douglas, No. 09-0466/AF


to dismiss was denied and a remedy was crafted to overcome the

effects of the unlawful command influence.

     The remedy consisted of several parts.     The military judge

ordered a continuance so that trial and defense counsel would

have the opportunity to, among other things, jointly author a

memorandum directed at potential character witnesses.    The

memorandum, which was to be written in the name of Appellant’s

commanding officer, was to be “utilized by defense counsel and

the [a]ccused to facilitate the securing of character statements

on behalf of the [a]ccused.”   The continuance was to last for a

period of time to “be determined by the Court, subsequent to the

finalization and approval of the memorandum.”    Further, the

military judge made several “strong recommendation[s]” designed

to remove Appellant from MSgt Bialcak’s supervision, prevent

MSgt Bialcak from discussing the case with anyone except trial

and defense counsel, and rescind MSgt Bialcak’s previously

issued no-contact orders.

     She then provided counsel with an opportunity to question

or state an objection regarding the memorandum, told counsel

that she was continuing the court-martial until counsel were

ready to proceed, and gave both parties another opportunity to

express any concern regarding the production of witnesses or

identify other unresolved issues.




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United States v. Douglas, No. 09-0466/AF


     The continuance lasted over seventy days, and hearings on

the merits began on November 1, 2005.   At that time, the

military judge questioned defense counsel regarding the

memorandum that had been, as ordered, jointly authored by

defense and trial counsel in the name of Appellant’s commander

and then reviewed by the military judge:3

     MJ: And another area that we need to take up is when
     the court recessed in August, in response to the
     court’s ruling regard [sic] the defense motion to
     dismiss, I requested counsel prepare a memorandum to
     be signed by Lieutenant Colonel Young, who was the
     accused’s commander. I requested that they forward
     that to me. They did so. Some modifications were
     done back and forth between all parties, and we did
     come up with a final memorandum. What I will do, the
     -- that memorandum was provided to all counsel.

          And I should ask [defense counsel] Captain
     Williams, did the defense receive a copy of that
     memorandum for their use?

     DC:   We did, Your Honor.

     Defense counsel raised no objection as to the effectiveness

of the memorandum.   When the military judge provided counsel the

3
  The memorandum was addressed to all persons who knew Appellant,
either personally or professionally, in the name of Appellant’s
commander. The memorandum stated, in relevant part:

     I can assure you that no negative actions will be
     initiated by anyone should they elect to assist in SrA
     Douglas’ defense. Any assistance you provide SrA
     Douglas is, to the contrary, very welcome and strongly
     encouraged. . . . If at any time you are approached by
     anyone attempting to pressure you, direct or
     otherwise, into a decision whether or not to testify
     or provide a letter of support on behalf of SrA
     Douglas, I ask you to immediately report the incident
     . . . .

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United States v. Douglas, No. 09-0466/AF


opportunity to voice any concerns that had arisen since August

or to raise additional motions, defense counsel responded,

“Nothing at this time, Your Honor.”

     Appellant was subsequently found guilty and sentenced.     On

appeal to the CCA, Appellant asserted, among other things, that

the military judge erred by not dismissing the charges and

specifications after finding unlawful command influence and

erred further when she found that the unlawful command influence

would not affect the findings stage of the trial.   Douglas, 2009

CCA LEXIS 41, at *2, 2009 WL 289705, at *1.   The CCA disagreed

that dismissal was mandated but agreed that the military judge

erred in holding that the unlawful command influence could only

have negatively impacted the sentencing portion of the trial.

Id. at *12-*14, 2009 WL 289705, at *5.   The CCA determined that

but for MSgt Bialcak’s influence, Appellant might have been able

to more effectively pursue a good military character defense

during the findings portion of his court-martial.   Id. at *13,

2009 WL 289705 at *5.

     Notwithstanding this error, however, the CCA found no

prejudice because (1) there was no abuse of discretion in the

type of corrective action chosen by the military judge, and (2)

the corrective action was “ultimately implemented in a manner

broad enough to dissipate any potential taint as to both

findings and sentence.”   Id. at *14, 2009 WL 289705, at *5


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United States v. Douglas, No. 09-0466/AF

(emphasis in original).   The CCA found that the corrective

action provided the opportunity to the defense -- had it so

chosen -- to execute a trial strategy that included presentation

of good character evidence during both the findings and

sentencing phases of the trial.    Id. at *14-*15, 2009 WL 289705,

at *5.


                          II.   Discussion

     The issue granted is whether the military judge erred by

choosing a remedy other than dismissal after finding that MSgt

Bialcak’s no-contact orders and negative behavior discouraged

witnesses from providing character statements for Appellant and

resulted in unlawful command influence.      We agree with the CCA

that there was no abuse of discretion in the type of corrective

action decided upon by the military judge.4     However, once

unlawful command influence is raised at the trial level, as it

was here, a presumption of prejudice is created.     Biagase, 50

M.J. at 150.   To affirm in such a situation, we must be

convinced beyond a reasonable doubt that the unlawful command

influence had no prejudicial impact on the court-martial.       Id.

at 150-51.   Although this is a close case, on the record we have

here we are not so convinced.


4
  We also agree with the CCA that the impact of the unlawful
command influence extended to both the findings and sentencing
portions of the trial.

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United States v. Douglas, No. 09-0466/AF

                                       A.

     Article 37(a), UCMJ, prohibits unlawful command influence.

This prohibition includes attempts to interfere with access to

witnesses.   See United States v. Gore, 60 M.J. 178, 185

(C.A.A.F. 2004) (condemning unlawful command influence directed

against prospective witnesses); United States v. Stombaugh, 40

M.J. 208, 212-13 (C.M.A. 1994) (same).       Dismissal of the charges

is one alternative if unlawful command influence is found.

Gore, 60 M.J. at 187.

     In a case involving unlawful command influence, we review

issues involving a military judge’s decision not to dismiss for

abuse of discretion.    Id.   Under this standard, “‘when judicial

action is taken in a discretionary matter, 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 of

judgment in the conclusion it reached upon a weighing of the

relevant factors.’”    Id. (quoting United States v. Houser, 36

M.J. 392, 397 (C.M.A. 1993)).    We grant a military judge broad

discretion in crafting a remedy to remove the taint of unlawful

command influence, and we will not reverse “so long as the

decision remains within that range.”        Id. (citation omitted).

     This Court has recognized that “a military judge can

intervene and protect a court-martial from the effects of

unlawful command influence.”    Biagase, 50 M.J. at 152 (citing


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United States v. Douglas, No. 09-0466/AF

United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998)).   We have

looked with favor on military judges taking proactive, curative

steps to remove the taint of unlawful command influence and

ensure a fair trial.   See, e.g., id. (approving of the military

judge’s forceful and effective discharge of his duties to

protect the court-martial from unlawful command influence);

Rivers, 49 M.J. at 444 (approving of the military judge’s

detailed and case-specific remedies that ensured the appellant’s

trial was untainted by unlawful command influence).   As a last

resort, a military judge may consider dismissal “when necessary

to avoid prejudice against the accused.”   Gore, 60 M.J. at 187.

“[D]ismissal of charges is appropriate when an accused would be

prejudiced or no useful purpose would be served by continuing

the proceedings.”   Id. (citing United States v. Green, 4 M.J.

203, 204 (C.M.A. 1978)).   However, we have noted that “[w]hen an

error can be rendered harmless, dismissal is not an appropriate

remedy.”   Id. (citing United States v. Mechanik, 475 U.S. 66

(1986)).   Dismissal “is a drastic remedy and courts must look to

see whether alternative remedies are available.”   Id. (citation

omitted); see also United States v. Cooper, 35 M.J. 417, 422

(C.M.A. 1992).

     We find the specifically tailored nature of the remedy and

Appellant’s silence during and after the creation of the remedy

instructive to our conclusion that the military judge acted


                                12
United States v. Douglas, No. 09-0466/AF

within her discretion in crafting a remedy aimed at ameliorating

the effects of MSgt Bialcak’s actions rather than dismissing the

charges.   The military judge, after evaluating defense counsel’s

pretrial motion to dismiss, identified MSgt Bialcak’s no-contact

orders and his publicly and forcefully expressed negative

attitude toward Appellant as unlawful command influence that

could have discouraged potential witnesses from providing

character statements on Appellant’s behalf.   She then arrived at

a remedy tailored to remove both roadblocks to obtaining

character statements and any remaining specter of unlawful

command influence.   In total, the remedy consisted of:   (1)

providing a continuance to enable trial and defense counsel to

co-author a memorandum from Appellant’s commanding officer; (2)

making the memorandum available to the defense; (3) allowing the

defense to decide on the memorandum’s use and to pursue such

witnesses as it chose; and (4) “strong[ly] recommend[ing]” that

(a) Appellant be removed from MSgt Bialcak’s supervision and

assigned to another office selected by Appellant’s commander,5

(b) MSgt Bialcak be issued an order from his commander to

immediately cease and desist communications regarding Appellant

and the investigations, charges, and court-martial, and (c) the

5
  We note, however, that even though the military judge
recommended that Appellant be removed from MSgt Bialcak’s
supervision by transferring Appellant, it would have been at
least as reasonable to transfer MSgt Bialcak, the source of the
unlawful command influence.

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United States v. Douglas, No. 09-0466/AF

Government immediately rescind both the cease and desist order

and the order prohibiting Appellant from contacting members of

his unit.    While the memorandum alone would not have been enough

to alleviate other impediments to Appellant obtaining witness

statements -- such as the no-contact orders and continued

comments and interference by MSgt Bialcak -- collectively, these

actions were reasonably tailored to alleviate the harm in this

case.

        By not objecting during trial, defense counsel appeared to

indicate his satisfaction with the potential efficacy of this

remedy.    This finding is bolstered by the fact that Appellant

raises no claim for ineffective assistance of counsel here.       On

balance, we find the decision of the military judge not to

dismiss the case in favor of attempting to remedy the unlawful

command influence to be well within the bounds of her

discretion.

                                  B.

        We remain vigilant, however, against unlawful command

influence, which this Court has called “the mortal enemy of

military justice.”6    United States v. Lewis, 63 M.J. 405, 407

(C.A.A.F. 2006) (quotation marks and citations omitted).    While

6
  Unlawful command influence is not the “mortal enemy” of the
military justice system because of the number of cases in which
such influence is at issue, but rather because of the
exceptional harm it causes to the fairness and public perception
of military justice when it does arise.

                                  14
United States v. Douglas, No. 09-0466/AF

the military judge stands watch as the “last sentinel” in the

military justice system, United States v. Harvey, 64 M.J. 13, 14

(C.A.A.F. 2006) (quotation marks and citations omitted), once

unlawful command influence is raised pretrial or at trial, the

responsibility to protect the military justice system against

unlawful command influence is not one unilaterally thrust upon

the shoulders of the military judge.      Rather, it is a shared

responsibility.   Id. at 17-18.    The military judge, having

crafted a reasonable remedy, is not required, in the face of

apparent satisfaction from the defense, to intuit possible

objections for the defense and then raise them sua sponte.

     Herein lies the difficulty of this case:       on the one hand,

the military judge, acting within her discretion, crafted a

remedy that would -- if fully implemented -- satisfy concerns

about the effect of unlawful command influence in this case, and

defense counsel -- after a lengthy continuance -- had no further

objections or motions and did not request additional time.       On

the other hand, the burden of proof is on the Government, and

the record does not itself reveal that all portions of the

remedy crafted were implemented.       Thus, while Appellant’s

acquiescence and silence are factors to consider -- factors that




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United States v. Douglas, No. 09-0466/AF

make this a close case on this record7 -- given that the burden

of proof is on the Government, Gore, 60 M.J. at 186, we cannot

be convinced beyond a reasonable doubt that the taint from the

unlawful command influence did not prejudice Appellant.

     The particular harm from the unlawful command influence in

this case was that but for MSgt Bialcak’s influence, Appellant

might have been able to more effectively pursue a good military

character defense during the findings and sentencing portions of

his court-martial.   The remedy as a whole was a reasonable and

tailored means to combat that harm.   But while the letter in the

name of the commanding officer was drafted and available for use

by the defense, the record does not reveal whether Appellant’s

commanding officer followed the remaining remedies crafted by

the military judge regarding the orders MSgt Bialcak had

previously issued.   The record is unclear as to whether

Appellant’s commander either issued an order forbidding MSgt

Bialcak from discussing the case with anyone except trial and

defense counsel or rescinded the no-contact orders that

precluded Appellant from contacting witnesses.

     The record does reveal, however, that none of the

witnesses that testified on the unlawful command influence

motion that they were discouraged from providing character

7
  We note that this Court has not applied the doctrine of waiver
where unlawful command influence is at issue. United States v.
Johnston, 39 M.J. 242, 244 (C.M.A. 1994).

                                16
United States v. Douglas, No. 09-0466/AF

statements by MSgt Bialcak testified at trial.   And the

record does not otherwise demonstrate that unlawful command

influence did not deprive Appellant of favorable character

witnesses.   See, e.g., Gleason, 43 M.J. at 74-75 (noting

that the government could disprove the effect of unlawful

command influence on obtaining character witnesses by

showing that:   (1) the appellant in fact offered character

evidence at trial; (2) there either was no evidence of good

character available or that readily available rebuttal

evidence of bad character made raising good character

tactically implausible; or (3) the prosecution evidence at

trial was so overwhelming that character evidence could not

have had an effect (citing United States v. Thomas, 22 M.J.

388, 396-97 (C.M.A. 1986))).

     Here, Appellant presented no favorable character testimony

during his court-martial, the Government has not shown that

presentation of a good character defense was unfeasible, and the

Government has not met its burden of showing that the character

evidence would have been completely ineffective.   Further, the

record reveals that Appellant maintained his innocence even

after his conviction8 and that much of the evidence against him


8
  During the sentencing portion of the court-martial, for
example, defense counsel again discussed the effect of MSgt
Bialcak’s behavior on Appellant’s defense: “He was ordered to
stop talking with people, to stop assisting in his own defense,

                                17
United States v. Douglas, No. 09-0466/AF

came solely from the victim’s own testimony.    Thus, despite the

theoretical efficacy of the crafted remedy -- and while this

would be a different case if evidence in the record indicated

that the remedy had been implemented in full -- on this record

we cannot say we are convinced beyond a reasonable doubt that

Appellant was not deprived of the benefit of testimony from

character witnesses as a result of the unlawful command

influence.

     When a military judge crafts a reasonable and tailored

remedy to remove unlawful command influence, and if the record

reflects that the remedy has been implemented fully and no

further objections or requests were made by the defense, then

rather than requiring the government to prove a negative we

would be satisfied that the presumptive prejudice had been

eliminated.9   See Biagase, 50 M.J. at 150.   However, as in this

case, when the record fails to include evidence that key

components of the remedy were implemented, the presumption of

prejudice flowing from the unlawful command influence has not

been overcome.   The government must then find an alternative way

to meet its burden.   See, e.g., Gleason, 43 M.J. at 74-75.


an investigation that had been going on for two years, he was
told to stop doing that. . . . This case is about an airman who
was convicted before he ever set foot in the courtroom two years
ago.”
9
  This would be true even if an appellant did not pursue a good
military character defense as there are tactical considerations,
apparent or not, which could influence that decision.

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United States v. Douglas, No. 09-0466/AF

                         III.   Conclusion

     The decision of the United States Air Force Court of

Criminal Appeals is reversed and the findings and sentence are

set aside.   A rehearing may be ordered.     The record of trial is

hereby returned to the Judge Advocate General of the Air Force

who shall refer the case to an appropriate convening authority

to determine if a rehearing is practicable.     If the convening

authority determines that a rehearing is impracticable, the

charges shall be dismissed.




                                 19
United States v. Douglas, No. 09-0466/AF


     BAKER, Judge (dissenting):

     While the unlawful command influence in this case was

manifest, this is a close case on prejudice.   One reason the

prejudice call is a close one is because the manner in which the

unlawful command influence issue was litigated does not fit

neatly into the United States v. Biagase, 50 M.J. 143, 151

(C.A.A.F. 1999), framework.   Specifically, under Biagase once

unlawful command influence is found, the burden shifts to the

government to disprove prejudice beyond a reasonable doubt.     Id.

However, the Biagase line of cases is addressed to instances of

unlawful command influence identified after trial.   This issue

arose before trial.   Moreover, the Biagase line did not

contemplate nor address the circumstance where, as here, the

defense expressed satisfaction with the remedial measures

adopted by the military judge, in which context; the military

judge did not require more from the government.

     As a result, in this case there are arguments on both sides

of the ledger.   On the one hand, this is clearly a case where

the chilling hand of unlawful command influence initially

limited Appellant’s opportunity to solicit favorable testimony.

Because the Government bears the burden of proving beyond a

reasonable doubt that the unlawful command influence was not

prejudicial, it is placed in the position in this case of having

to demonstrate a negative, that Master Sergeant (MSgt) Bialcak’s
United States v. Douglas, No. 09-0466/AF


orders and actions did not continue to keep people from

testifying after the remedy was put in place.   However, that is

hard to do; to resort to one of the metaphors that seem to cling

to unlawful command influence issues, one cannot un-ring a bell.

Perhaps, one of those putative witnesses would have vouched for

Appellant’s credibility or qualities as a member of the

military.

     On the other hand, neither the military judge nor the

defense counsel put the Government to the test.   Defense counsel

affirmed that the remedy had been implemented and, when given

the opportunity to object or voice any concerns or raise

additional motions, responded, “Nothing at this time.”

Moreover, there is no evidence that Appellant was prejudiced in

a military judge alone trial where the military judge understood

what the putative witnesses might have said, where the military

judge instituted a reasonable remedy, and where defense counsel

expressed satisfaction with the result.

     Weighing these two sides of the equation I would reach a

different result than the majority in this case, therefore, I

respectfully dissent.   As importantly, I disagree with the

analytic structure and reasoning the majority adopts.

     First, the majority embraces the dated unlawful command

influence metaphor that the military judge is the last sentinel

against unlawful command influence, but then relieves that


                                 2
United States v. Douglas, No. 09-0466/AF


sentinel of her duties.   “The military judge, having crafted a

reasonable remedy, is not required, in the face of apparent

satisfaction from the defense, to intuit possible objections for

the defense and then raise them sua sponte.”    United States v.

Douglas, __ M.J. __ (15) (C.A.A.F. 2010).   In my view, whatever

metaphor we adopt, and it might be time to simply refer to the

military judge as a military judge and not a sentinel, it is and

remains the military judge’s responsibility to address unlawful

command influence at trial from start to finish, regardless of

what the parties say.

      Second, the majority concludes that the military judge’s

remedial actions were reasonable.    Id. at __ (14).   The majority

also notes that the defense was given the opportunity to express

concerns about the application of those remedies and did not.

Id.   That acquiescence is not waiver, but it is a factor the

military judge reasonably considered in proceeding with

sentencing.   Specifically, in the context of this case, in a

military judge alone trial, the military judge did not require

the Government to do something more to demonstrate a lack of

unlawful command influence prejudice.   Although in retrospect,

we now know it would have been better if the military judge had

expressly determined that all the remedial measures had been

implemented, I do not think the Biagese framework requires, or

should require, the Government to nonetheless prove a negative


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United States v. Douglas, No. 09-0466/AF


in the context where the defense expressed satisfaction, the

military judge did not require more, and the military judge,

sitting alone, had command of the facts that might be relevant

to a good soldier case.

     Third, in any event, the majority cites United States v.

Gleason, 43 M.J. 69, 74-75 (C.A.A.F. 1995), for the proposition

that the government has three means by which it can demonstrate

a lack of prejudice in a character witness case.   Douglas, __

M.J. at __ (16-17).   Aside from the fact that Gleason does not

provide or compel a checklist approach to prejudice, I would

leave the appropriate means of demonstrating a lack of prejudice

to the context of the individual case presented and the

discretion of the military judge presiding.   This is especially

apt where the unlawful command influence is identified before

trial and addressed, as opposed to the circumstances in Gleason

and United States v. Thomas, 22 M.J. 388 (C.M.A. 1986), where it

was identified after trial.

     Military judges, counsel, and indeed all participants in

the military justice system have a duty to remain vigilant to

the risk of unlawful command influence on military justice.    In

this sense, the metaphor of the “mortal enemy” is still apt.     If

allowed in practice, unlawful command influence will have a

corroding effect that could prove deadly to the confidence

members of the Armed Forces and the public have in the military


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justice system.   However, it is also fair to acknowledge that

the system has matured and evolved since Thomas.   Thus, the

metaphor remains less apt to the extent it conveys the sense

that there is an enemy afoot -- a mortal enemy -- which one

might expect to contest the system at every turn, like Cold War

enemies or Carthage and Rome.   In this sense, the metaphor may

suggest too much, in the way of a breathless presence, or

omnipresence.   In that regard, one might better look to child

pornography or processing delay in the military justice system

as “mortal enemies.”   However one describes unlawful command

influence, in this case the problem was identified, reasonable

remedial steps were taken, and both the military judge and

defense counsel were satisfied with those steps before the

military judge alone trial proceeded further.   As a result, I

would find that there was no prejudice in this case and affirm

the United States Air Force Court of Criminal Appeals decision.




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      STUCKY, Judge (dissenting):

      I respectfully dissent from the judgment of the Court to

set aside Appellant’s conviction.

      The military judge fashioned a remedy for the unlawful

command influence and gave Appellant an opportunity to object to

it.   Appellant did not object and the military judge continued

the court-martial until the remedy could be implemented.     With

the consent of the parties, the military judge reconvened the

court-martial more than seventy days later.   The military judge

inquired as to the implementation of the remedy.   Defense

counsel affirmed that the remedy had been implemented and, when

given the opportunity to object or voice any concerns or raise

additional motions, responded, “Nothing at this time.”

      The majority notes that “this Court has not applied the

doctrine of waiver where unlawful command influence is at

issue.”    United States v. Douglas, __ M.J. __ (16 n.7) (C.A.A.F.

2010).    This case is not about waiver of the unlawful command

influence issue -- Appellant’s attorneys raised, argued, and

prevailed on that issue at trial.   Instead, this case concerns

whether an appellant has a duty to notify the military judge if

and when an instituted remedy proves unsatisfactory.   I believe

he does.

      The majority rests its holding on the fact that it does not

know whether the remedy was successfully implemented because the
United States v. Douglas, No. 09-0466/AF


defense did not call any character witnesses to testify on

Appellant’s behalf at this judge-alone trial.   But there is good

reason for our ignorance; the defense failed to complain at

trial that the remedy was ineffective or provide facts upon

which such a conclusion could be drawn, even though any such

facts were solely within its knowledge.

     Despite the absence of these necessary facts, the majority

suggests the prosecution had a duty to show that the

presentation of a good character defense was infeasible.   Id. at

__ (17-18).   There are many reasons why Appellant’s counsel may

have finally decided not to present such a defense, even if it

were feasible to do so.   Placing the burden on the prosecution

to prove the defense was infeasible makes no sense, unless the

majority believes that Appellant’s counsel were ineffective.   On

the record before us, there is no evidence or reason to believe

that the same aggressive defense attorneys who had prevailed on

the unlawful command influence issue suddenly lost their courage

and were afraid to notify the military judge that the remedy had

not been fully implemented or had not worked.   On the facts of

this case, I am convinced beyond a reasonable doubt that the

remedy fashioned by the military judge purged the taint of the

unlawful command influence.




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