          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                          Master Sergeant JOHN W. SAUNDERS, IV
                                   United States Air Force

                                        Misc. Dkt. No. 2014-15

                                              17 April 2015


         SPCM convened at Osan Air Base, Republic of Korea. Military Judge:
         Gregory O. Friedland.

         Appellate Counsel for the Appellee: Major Isaac C. Kennen.

         Appellate Counsel for the United States: Captain Richard J. Schrider;
         Colonel Katherine E. Oler; and Gerald R. Bruce, Esquire.

                                                  Before

                             HECKER, MITCHELL, and SARAGOSA
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



HECKER, Senior Judge:

       The government filed an interlocutory appeal under Article 62, UCMJ,
10 U.S.C. § 862, in this matter. The government challenges the military judge’s ruling to
dismiss all charges and specifications with prejudice based on unlawful command
influence.

                                          Procedural History

      The charges in this case stemmed from allegations made by several male members
of the appellee’s unit. At the time of the allegations, the appellee was the
noncommissioned officer in charge of the Transient Alert Flight within the
51st Maintenance Squadron at Osan Air Base, Republic of Korea. The appellee was
charged with maltreating two subordinates by pushing one and being verbally abusive to
the other, alleged in violation of Article 93, UCMJ, 10 U.S.C. § 893. He was also
charged with seven specifications of abusive sexual contact by touching the buttocks or
groin of four other subordinates through their clothing, alleged in violation of
Article 120, UCMJ, 10 U.S.C. § 920. The appellee was also charged with two
specifications of assault consummated by a battery for touching the nipples of two
subordinates through their clothing and with obstructing justice based on a conversation
he had with one of the subordinates, alleged in violation of Articles 128 and 134, UCMJ,
10 U.S.C. §§ 928, 934. The charges were referred to a special court-martial by the
commander of the 51st Fighter Wing.

       Following arraignment, the defense raised a motion to dismiss the Article 120,
UCMJ, offenses for unlawful command influence, based on public statements made by
the President and the Secretary of Defense regarding sexual assault issues within the
military, the congressional reaction to those issues, and the recent expansion of victims’
rights within the military justice system. The gist of the defense motion was that the
Article 120, UCMJ, charges were only preferred because of pressure on the command
from the environment created by these public statements. The defense also filed a related
motion to dismiss the Article 120, UCMJ, offenses for improper preferral and referral
based on the preferring commander’s alleged lack of knowledge about the underlying
offenses. If he granted either defense motion, the defense also argued the military judge
should dismiss the remaining charges as those charges did not warrant a special
court-martial.

       During a session pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a), regarding
these motions, the squadron commander who preferred the charges, the special
court-martial convening authority, the appellee, the defense paralegal, and four
noncommissioned officers from the appellee’s work center testified. After considering
this testimony and two affidavits signed by the squadron commander and the special
court-martial convening authority, the military judge dismissed the charges with
prejudice on 7 October 2014 after concluding apparent unlawful command influence
existed in the accusatory process.1

       The government filed a motion asking the military judge to reconsider his ruling
on 10 October 2014. Also filed on that day were 13 affidavits referenced in the motion,
including one from Lieutenant Colonel (Lt Col) EW, the appellee’s squadron
commander. Through three additional e-mails between 10 October and 14 November
2014, the government provided the judge with three additional declarations not
referenced in the motion. The defense filed a response, opposing the reconsideration
1
  As described below, this ruling was based on certain events that occurred prior to referral. At the same time, the
military judge found the defense had failed to meet its low burden of producing “some evidence” of apparent or
actual unlawful command influence regarding the public statements made by senior civilian and military officials.


                                                         2                                  Misc. Dkt. No. 2014-15
request and attached several affidavits and character letters supporting the appellee.
After hearing additional argument on 14 November 2014, the military judge denied the
government’s motion in a written ruling dated 26 November 2014.

      That same day, the government served a notice of appeal on the military judge and
defense counsel. The authenticated record of trial was docketed with this court on
16 December 2014.

                                                 Jurisdiction

       Military appellate courts are courts of limited jurisdiction; “prosecution appeals
are not favored and are available only upon specific statutory authorization.”
United States v. Wuterich, 67 M.J. 63, 70 (C.A.A.F. 2008). This court has jurisdiction to
hear this appeal under 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 adjudged.

       In order for this court to have jurisdiction to review a military judge’s ruling, the
government must have filed either a motion for reconsideration or notified the military
judge of its appeal within 72 hours of the initial ruling. Article 62(a)(2), UCMJ;
United States v. Daly, 69 M.J. 485, 486 (C.A.A.F. 2011). The military judge’s initial
ruling was issued at 1720 hours on 7 October 2014, making the government’s motion for
reconsideration or notice of appeal due before 1720 hours on 10 October 2014. The
appellee argues the authenticated record of trial does not reflect that the motion for
reconsideration was filed in a timely manner. In response, the government moved to
admit six emails that purportedly show the timing of the government’s reconsideration
motion. We denied that request to supplement the record because the military judge’s
ruling denying the reconsideration motion states the government’s motion was filed at
1359 hours on 10 October 2014. We therefore find the government’s reconsideration
motion2 was filed in a timely manner, as was its notice of appeal following the military
judge’s denial of that motion.

       The appellee also moved to dismiss the government’s appeal because the military
judge’s ruling denying the motion for reconsideration is not properly within the record
docketed with this court. He acknowledges the ruling is included within the docketed
materials, and he does not contest the authenticity of this document. Instead, because it is
not marked as an appellate exhibit or referenced in the exhibit list or transcript, the


2
  The appellee also contends that the appellee’s motion for reconsideration submitted on 10 October 2014 was not
“finalized” and thus was inadequate to toll the government’s 72-hour deadline. Although the government provided
the military judge with several affidavits after 10 October 2014 and did not have a copy of the motion and its
exhibits ready for official submission at the 26 November 2014 hearing, the military judge considered the motion to
be timely filed. We agree.


                                                        3                                  Misc. Dkt. No. 2014-15
appellee contends this “stray document” is not properly part of the authenticated record,
making the record before this court “incomplete.”

       Whether a record is complete is a question of law this court reviews de novo.
United States v. Davenport, 73 M.J. 373, 376 (C.A.A.F. 2014). Rule for Courts-Martial
(R.C.M.) 908(b)(5) outlines the process by which the government will complete a record
of proceedings for issues appealed pursuant to Article 62, UCMJ:

                 Upon written notice to the military judge under subsection
                 (b)(3) of this rule, trial counsel shall cause a record of the
                 proceedings to be prepared. Such record shall be
                 verbatim and complete to the extent necessary to resolve the
                 issues appealed. . . . [T]he record shall be authenticated in
                 accordance with R.C.M. 1104(a).

        R.C.M. 1104(a)(2) describes who is responsible for authenticating a record of trial
after punishment has been adjudged.3 In an Article 62, UCMJ, appeal, no punishment
has yet been adjudged. Under those circumstances, we find the following pertinent
language from R.C.M. 1104(a) governs authentication: “A record is authenticated by the
signature of a person specified in this rule who thereby declares that the record accurately
reflects the proceedings.”

       At the conclusion of the Article 39(a), UCMJ, session held on 14 November 2014,
the military judge told the parties he would take the reconsideration matter under
advisement and issue a ruling via e-mail. He did not announce an appellate exhibit
number to be assigned to that document. Based on a certification by trial counsel in the
record, the military judge issued his ruling on 26 November 2014. According to the court
reporter chronology, trial counsel and trial defense counsel were sent the transcript on
3 December 2014 and authenticated it on 4 December 2014. That same day, the military
judge was sent the transcript. The military judge signed his authentication page on
9 December 2014, stating: “I examined the Record of Trial in the above-referenced case
and find that it accurately reports the proceedings. I authenticate those pages of the
Record of Trial in accordance with R.C.M. 1104.”

       The chronology indicates the record of trial was assembled that same day. Based
on this, we conclude the military judge only reviewed the transcript pages and did not
review the exhibits as part of that authentication.



3
  That individual is a military judge for a special court-martial where a bad-conduct discharge, confinement for more
than 6 months, or forfeiture of pay for more than 6 months was adjudged. For cases where that level of punishment
was not adjudged, the court reporter may authenticate the record with the permission of the military judge. Rule for
Courts-Martial 1104(a)(2)(A), (B); Air Force Manual 51-203, Records of Trial, Chapter 12 (27 June 2013).


                                                         4                                   Misc. Dkt. No. 2014-15
       Notably, this is not a case where an appellate exhibit is missing from the record of
proceedings. During review under Article 66, UCMJ, the omission of an exhibit whose
content is either qualitatively or quantitatively substantial can make a record of trial
incomplete and preclude affirmance of certain adjudged sentences if the government
cannot reconstruct the missing material. See Davenport, 73 M.J. at 377; United States v.
Stoffer, 53 M.J. 26, 27 (C.A.A.F. 2000); United States v. Lashley, 14 M.J. 7, 9 (C.M.A.
1982).

       Here, the appellate exhibit is not missing. It is included in the record of
proceedings assembled by the court reporter and trial counsel and docketed with this
court. The exhibit has indicia of authenticity and the appellee does not contend
otherwise. Under these circumstances, we conclude it is legitimately part of the record
and that record is compliant with the requirements of R.C.M. 908(b)(5).

                              Unlawful Command Influence

       Article 37(a), UCMJ, 10 U.S.C. § 837(a) states: “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 . . . .” Unlawful “[c]ommand influence is the mortal
enemy of military justice.” United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986).
Congress and courts “are concerned not only with eliminating actual unlawful command
influence, but also with ‘eliminating even the appearance of unlawful command influence
at courts-martial.’” United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006) (quoting
United States v. Rosser, 6 M.J. 267, 271 (C.M.A. 1979).

       “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.” Lewis, 63 M.J. at 415 (internal quotation
marks and citation omitted). Because the focus is on the perception of fairness “as
viewed through the eyes of a reasonable member of the public. . . . [T]he appearance of
unlawful command influence will exist where an objective, disinterested observer, fully
informed of all the facts and circumstances, would harbor a significant doubt about the
fairness of the proceeding.” Id.

       “[O]nce 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. Stoneman, 57 M.J. 35, 42 (C.A.A.F.
2002) (quoting Rosser, 6 M.J. at 271). This call to maintain the public’s confidence that
military justice is free from unlawful command influence follows from the fact that even
the “appearance of unlawful command influence is as devastating to the military justice



                                             5                          Misc. Dkt. No. 2014-15
system as the actual manipulation of any given trial.” United States v. Allen, 33 M.J. 209,
212 (C.M.A. 1991).

        At trial, the burden of raising the issue of unlawful command influence rests with
trial defense counsel. United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). The
defense must present “some evidence” of facts which, if true, constitute unlawful
command influence, and demonstrate that this alleged unlawful command influence has a
logical connection to potential unfairness at the court-martial. Id. Once the issue is
cognizably raised in this manner, “the appearance or existence of unlawful command
influence creates a rebuttable presumption of prejudice.” United States v. Wallace,
39 M.J. 284, 286 (C.M.A. 1994). The government can rebut that presumption by proving
beyond a reasonable doubt that (1) the predicate facts do not exist, (2) those facts do not
constitute unlawful command influence, or (3) the unlawful command influence will not
affect the proceedings. Biagase, 50 M.J. at 150.

                                   Standard of Review

        In an Article 62, UCMJ, appeal, this court “reviews the military judge’s decision
directly and reviews the evidence in the light most favorable to the prevailing party at
trial.” United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014). “[T]he military judge’s
findings of fact are reviewed under a clearly-erroneous standard and the question of
command influence flowing from those facts is a question of law reviewed de novo.”
United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994).

        Because this review is occurring pursuant to Article 62, UCMJ, we cannot find our
own facts in addition to, or contrary to, the facts found by the military judge, nor can we
substitute our interpretation of his facts. United States v. Baker, 70 M.J. 283, 287–88
(C.A.A.F. 2011); United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007);
United States v. Terry, 66 M.J. 514, 517 (A.F. Ct. Crim. App. 2008). Under these
circumstances, “the question is not whether a reviewing court might disagree with the
trial court’s findings, but whether those findings are fairly supported by the record.”
United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004) (citations and internal quotation
marks omitted). “To give due deference to the trial bench, a determination of fact should
not be disturbed unless it is unsupported by the evidence of record or was clearly
erroneous.” Id. (citations and internal quotation marks omitted). “In entering a finding
of fact, the military judge must rely on evidence of record which fairly supports that
finding; in the absence of any such evidence, the finding is error as a matter of law.”
United States v. Bradford, 25 M.J. 181, 184 (C.M.A. 1987).

      When a military judge has ordered remedial action after finding unlawful
command influence, this court reviews that decision for an abuse of discretion. Gore,
60 M.J. at 187. A military judge has broad discretion and a range of choices in crafting a
remedy to remove the taint of unlawful command influence, and this court will not


                                             6                          Misc. Dkt. No. 2014-15
reverse so long as his or her decision remains within that range. United States v.
Douglas,
68 M.J. 349, 354 (C.A.A.F. 2010). In the Article 62, UCMJ, context, a military judge
abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law
are incorrect. Wicks, 73 M.J. at 98. “The abuse of discretion standard ‘calls for more
than a mere difference of opinion. The challenged action must be arbitrary . . . , clearly
unreasonable, or clearly erroneous.’” Id. (quoting United States v. White, 69 M.J. 236,
239 (C.A.A.F. 2010)).

                                                 Findings of Fact

        The military judge’s initial ruling dismissing the charges and specifications and
his ruling denying the government’s motion for reconsideration included findings of fact.
Applying the standards described above, we hold that these findings, as described below,
are fairly supported by evidence in the record and are not clearly erroneous.4

       Over a year before preferral and referral occurred in the appellee’s case, the
President, on 7 May 2013, stated he had “no tolerance” for sexual assault. He continued
that he “expect[ed] consequences” for offenders. He further assured victims of sexual
assault:

                  I want them to hear directly from their commander in chief
                  that I’ve got their backs . . . . [W]e’re not going to tolerate
                  this stuff and there will be accountability . . . . If we find
                  somebody’s engaging in this, they’ve got to be held
                  accountable, prosecuted, stripped of their positions,
                  court-martialed, fired, dishonorably discharged. Period. It’s
                  not acceptable.

       That same day, the Secretary of Defense also made comments at a press
conference where he discussed the need for a culture change in the military and a plan to
hold commanders accountable “for any perceived failure to properly prevent or respond
to allegations of sexual assault within their units.” He stated commanders at all levels
would be held accountable for any perceived failure to properly prevent or respond to
allegations of sexual assault. Like the President’s remarks, these comments were widely
publicized. Since that time, clarifying comments have been made on behalf of the
President and the Secretary of Defense.


4
  Although the government contends that certain affidavits and testimony contain information that is contrary to the
facts found by the military judge, a “military judge does not err merely because some evidence points in the opposite
direction” of his factual conclusion. United States v. Fry, 70 M.J. 465, 471 (C.A.A.F. 2012); United States v.
Morgan, 40 M.J. 389, 394 (C.M.A. 1994) (“Where there are underlying factual issues requiring resolution of
conflicting testimony, the military judge’s findings of fact will be upheld ‘if fairly supported in the record’ . . . .”).


                                                            7                                    Misc. Dkt. No. 2014-15
      The charges in this case were preferred by Lt Col EW, the squadron commander,
on 16 July 2014, and referred by the special court-martial convening authority,
Colonel (Col) BL, on 24 July 2014.

       Through a sworn affidavit and in-court testimony, Lt Col EW stated he was aware
of the public comments made by the President, Secretary of Defense, the Air Force Chief
of Staff, members of Congress, and other senior military leaders regarding the handling
of sexual assault in the military, as well as media reporting about those issues.
Lt Col EW stated that the public comments did not influence his decision to prefer the
charges in this case and that he was not aware of any comments specifically directed at
this case. He testified that he had read the report of investigation (including the
statements of the victims), he believed the allegations were true, he felt no pressure to
prefer charges, and he felt the number of complainants tipped the scales in favor of
resolving the allegations with a court-martial.

       Col BL was the special court-martial convening authority in this case. Through a
sworn affidavit and in-court testimony, Col BL stated he was aware of the public
comments described above, but they did not influence his decision to refer the case to
trial. Additionally, Col BL was an acquaintance of then-Lt Col Wilkerson and
then-Lieutenant General Franklin, the latter who was his commander at Weapons
School.5 Col BL stated none of the public matters about the Wilkerson case influenced
his decision to refer the charges to trial. He reviewed the entire report of investigation,
the charges preferred by Lt Col EW, and believed the report of investigation matched the
preferred charges. He did not discuss this case with Lt Col EW.

       In mid-December 2013, seven months before the preferral and referral of charges,
a meeting was held in the appellee’s work center at the Transient Alert Flight. According
to Technical Sergeant (TSgt) MK, a co-worker of the appellee, Lt Col EW and senior
noncommissioned officer leadership came to the work center. TSgt MK heard the
commander say, “If someone violates the UCMJ, I will remove them from the work
center.” At the end of this meeting, Lt Col EW asked if anyone had any questions. In
response, TSgt MK asked the commander about a suspected UCMJ violation in the work
center (referring to an assault that did not involve the appellee) and what could be done
about it. This statement was a shock to most of the people who heard it. It appeared to
catch Lt Col EW off guard, and the meeting ended. The First Sergeant’s response to this
assault allegation was “I typically let the sections handle it themselves,” or words to that
effect. Another co-worker, Staff Sergeant BW, recalled the statement as, “Let the First
Sergeant handle it,” or words to that effect.



5
  We note that while not part of the findings of fact, then-Lieutenant General Franklin was the convening authority
whose decision to set aside then-Lieutenant Colonel (Lt Col) Wilkerson’s sexual assault conviction garnered much
interest in the media and Congress.


                                                        8                                  Misc. Dkt. No. 2014-15
       Another co-worker, Master Sergeant (MSgt) CK was aware that a meeting was
held by the commander with the rest of the squadron’s senior noncommissioned officers.
MSgt CK remembers hearing the commander talk about an investigation but does not
remember any discussion about UCMJ violations. MSgt CK did recall a discussion about
removing section leadership without the appellee’s name being mentioned.

        Lt Col EW denied holding such a meeting in the work section where a discussion
ensued regarding violations of the UCMJ that would result in an individual being
removed from the work section. When asked whether he had ever briefed members of
the appellee’s work section that the appellee was guilty of sexual assault, Lt Col EW first
testified he could not recall that happening and then denied giving such a briefing. In an
affidavit submitted as part of the government’s reconsideration motion, Lt Col EW
recalled a meeting with the Transient Alert Flight occurring after the appellee was
removed from the work section.6

       The appellee was removed from the work section the day after the work section
meeting. In an affidavit submitted as part of the government’s reconsideration motion,
Lt Col EW stated he “did not direct the removal of [the appellee] from his section” but
during his testimony two days earlier, Lt Col EW remembered directing the removal of
the appellee from the work section.7 In another affidavit submitted as part of the
reconsideration motion, Chief Master Sergeant (CMSgt) CF, the squadron
superintendent, stated, “I was the one to make the decision to remove [the appellee] from
his unit. Lt Col [EW] did not remove him, but concurred with my decision after the
fact.” CMSgt CF further stated, “Matters regarding enlisted personnel fall under me and
I backbriefed my commander after I made the decision.”8 He also stated in his affidavit
that “the commander evaluates each case on its merits and decides based on the facts of
each case, often asking my input as well, and then decides how to go forward.”

                                             Conclusions of Law

        1. Finding of Unlawful Command Influence

       The military judge concluded the defense had not met its low burden of showing
there is “some evidence” of apparent or actual unlawful command influence with regard

6
  In his ruling on reconsideration, the military judge found Lt Col EW “quibbled in his testimony” and provided
conflicting information in his testimony and affidavit, leading the military judge to “view [his statements] with
skepticism.”
7
  See footnote 6.
8
  In his discussion of the motion, the military judge expressed concerned about CMSgt CF’s implication that he
controlled matters affecting enlisted personnel. The military judge concluded this was incorrect as “[c]ommand is
exercised by virtue of office and the special assignment of officers . . . who are . . . eligible by law to exercise
command.” Also, the military judge was “uncertain as to who is making decision[s] regarding discipline in the
squadron,” given the testimony of Lt Col EW and the affidavits submitted by Chief Master Sergeant (CMSgt) CF
and Staff Sergeant BW.


                                                         9                                  Misc. Dkt. No. 2014-15
to statements by senior leaders as reported in the media. He found no evidence was
presented that anyone has tried to influence the court-martial or the members selected to
sit on the panel and that there was no indication that any witness has been unwilling to
testify due to any of the media accounts provided to the military judge.

        However, through his initial ruling and his ruling denying the government’s
request for reconsideration, the military judge concluded the appellee had met his burden
of raising “some evidence” of apparent unlawful command influence in how the case was
brought to trial.9 He found this burden was met by the following facts10 which, in his
view, constituted “some evidence” of unlawful command influence:

         (1) The appellee’s commander held a meeting before trial where he stated
            that anyone who violated the UCMJ would be removed from the duty
            section, and then the appellee was removed from the duty section; and

         (2) The accused testified about statements made by the commander to the
             effect of, “How would I look to leadership if I did not push this issue?”

       After shifting the burden to the government, the military judge stated in both
rulings that he was “not convinced beyond a reasonable doubt that the comments upon
which [he] based [his] determination (1) are not true, (2) do not constitute unlawful
command influence, or (3) will not affect the proceedings.” He also stated:

                  In consideration of all the evidence considered on the matter,
                  the inherent probability or improbability of the testimony,
                  whether the testimony is supported or contradicted by other
                  evidence in the case, and the credibility of the witnesses, this
                  Court is not convinced beyond a reasonable doubt that the
                  preferral of charges in this case was not tainted by the danger
                  of Unlawful Command Influence.

       The military judge did not expressly elaborate on how these facts constituted
apparent unlawful command influence relative to the case.11 Conducting our de novo
review of the question of law about whether unlawful command influence flows from the
facts found by the military judge, we find the facts insufficient to support a conclusion
that “an objective, disinterested observer, fully informed of all the facts and
9
  At various places in his rulings, the military judge uses phrases and language more indicative of a finding of actual
unlawful command influence. Because the parties on appeal both consider his overall ruling to be one of apparent
unlawful command influence, we also do so.
10
   In finding these facts, the military judge also found the government failed to prove beyond a reasonable doubt that
these predicate facts were not true. As noted above, we do not find that conclusion to be clearly erroneous.
11
    The military judge described the defense as having met its burden of presenting some evidence of apparent
unlawful command influence “in the accusatory process”; “in the way this case was brought to trial”; and “in the
preferral of charges.”


                                                          10                                  Misc. Dkt. No. 2014-15
circumstances, would harbor a significant doubt about the fairness of the proceeding.”
Lewis, 63 M.J. at 415.

       In reaching his decision, the military judge concluded the commander had
expressed his determination of the appellee’s guilt through his statement at the duty
section and the subsequent removal of the appellee, finding the situation to be similar to
that found in United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010). He also noted that
(1) only one enlisted person who was part of the appellee’s flight when this statement
was made submitted a character statement for the appellee as part of the defense response
to the motion for reconsideration, and that this person had since left the unit; and (2) the
other character letters and affidavits submitted by the defense were provided by
contractors “who owe no duty or allegiance to the commander, the Chief, or the First
Sergeant.”

       Statements or actions by those in the chain of command that attempt to or tend to
intimidate or dissuade witnesses from testifying can constitute unlawful command
influence and can violate an accused’s right to have access to favorable evidence, in
violation of the Sixth Amendment12 and Article 46, UCMJ, 10 U.S.C. § 846.
See United States v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994); see also United States
v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998); United States v. Drayton, 45 M.J. 180, 182
(C.A.A.F. 1996); United States v. Gleason, 43 M.J. 69, 74–75 (C.M.A. 1995);
United States v. Ayala, 43 M.J. 296, 299 (C.A.A.F. 1995); United States v. Loving,
41 M.J. 213, 228–29 (C.A.A.F. 1994). In his initial ruling, the military judge stated he
found that “evidence exists regarding implied threats to potential witnesses in this case,”
but he did not link any specific factual findings to that conclusion. He also did not
expressly link the commander’s actions to the absence of additional character letters from
flight members, nor did the defense list any witnesses who had been chilled by this
incident. Additionally, in his initial ruling, the military judge concluded there was no
evidence that the defense had been hindered in any way in preparing for trial. We
recognize it can be “risky for a person in authority to comment on the merits of a pending
case, especially in the presence of subordinates.” Drayton, 45 M.J. at 182. However,
constrained by Article 62 UCMJ, to the factual findings of the military judge, we find
that these facts do not rise to the level of unlawful command influence or create the
appearance of it.13

      Furthermore, as found by the military judge, the appellee faced charges of cruelty
and maltreatment, abusive sexual contact, assault and battery, and obstruction of justice,
based on allegations raised by his co-workers and subordinates. In our view, an

12
   U.S. CONST. Amend. VI.
13
    In assessing the appearance of unlawful command influence, we are to consider the perception of an objective
observer who is “fully informed of all the facts and circumstances.” United States v. Lewis, 63 M.J. 405, 415
(C.A.A.F. 2006). Because this is an Article 62, UCMJ, 10 U.S.C. § 862, appeal, we conclude those “facts and
circumstances” are solely those found by the military judge.


                                                      11                                 Misc. Dkt. No. 2014-15
objective, disinterested, but informed observer would not consider the commander’s
decision to prefer such charges and remove the appellee from the duty section to be
unfair. Although the military judge found the appellee’s commander said, “How would it
look to leadership if I did not push this issue?”, the military judge also found no evidence
of any influence from statements made by senior leaders.

       2. Dismissal of charges

       Even if the facts found by the military judge rise to the level of apparent command
influence, we find he abused his discretion in dismissing the charges with prejudice.

       The military judge took this action after he found beyond a reasonable doubt
“there [was] no way to prevent the unlawful command influence from adversely affecting
the findings or sentence” relative to all the charges in the case. In reaching this
conclusion, he noted the following:

       (1) The normal duty assignment to Osan Air Base is 365 days. “[R]e-preferring
           charges, referral, and trying the case [would] cause an unreasonable hardship
           on the military members and their families (both the accused and witnesses).”

       (2) The same base leadership from the original preferral was still in place.

       (3) He considered the government’s suggestion that a newly arrived group
           commander could review the allegations anew but disapprovingly noted that
           this commander had already been briefed about the prior preferral and the
           wing commander’s referral.

       (4) The government failed to convince him beyond a reasonable doubt that
           moving the case outside of Seventh Air Force or Pacific Air Forces would
           alleviate the concerns of unlawful command influence.

       (5) The government failed to convince him beyond a reasonable doubt that the
           comments made by Lt Col EW or CMSgt CF would not affect a trial
           preferred and referred by another command.

       (6) Arguably, anyone providing a statement or affidavit in support of the
           appellee would have to respond to the CMSgt CF, even if another command
           elected to prefer and refer the charges to trial.

       Our superior court has “looked with favor on military judges taking proactive,
curative steps to remove the taint of unlawful command influence and ensure a fair trial,”
and a military judge may consider dismissal “as a last resort.” Douglas, 68 M.J. at 354.
Because dismissal of charges is a drastic remedy, courts must determine if alternative


                                             12                          Misc. Dkt. No. 2014-15
remedies are available. Gore, 60 M.J. at 187. Such an action “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, “[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)).

        In his reconsideration ruling, the military judge stated he had considered the many
remedies available to military judges, but he only discussed two potential
remedies—having a different commander on base review the evidence for potential
preferral or sending the case to another command for potential preferral. He rejected
both options, finding that anyone providing evidence in support of the appellee would
still be affected by the comments of the commander and the chief, regardless of who
preferred and referred the charges. Even if these comments rose to the level of unlawful
command influence, the military judge did not explain why these options would not be
sufficient to cure that problem.

       Also, the military judge did not discuss other curative steps available to him that
could have cured the appearance of unlawful command influence in this case, or why
those remedies would be insufficient. To address any intimidation of witnesses, he had
the option of directing remedial measures to assure flight members that there would be no
adverse ramifications from their support of the appellee. See, e.g., United States v.
Sullivan, 26 M.J. 442, 443 (C.M.A. 1988); Douglas, 68 M.J. at 353. He could have taken
steps to ensure the defense had full access to witnesses. See Sullivan, 26 M.J. at 443;
United States v. Stirewalt, 60 M.J. 297, 299 (C.A.A.F. 2004). He could have dismissed
the charges without prejudice, while noting his belief that any new commander who
prefers the charges should not be informed about the problematic history of the case.
See, e.g., United States v. Villareal, 52 M.J. 27, 31 (C.A.A.F. 1998) (finding that transfer
of a case to an impartial convening authority cured any appearance of unlawful command
influence).

       Because the military judge did not fully discuss the alternative remedies and it is
not clear to us that those alternatives would have been insufficient to restore public
confidence in the case, we find he abused his discretion by choosing the “last resort”
option of dismissal with prejudice. See United States v. Flesher, 73 M.J. 303, 311–12
(C.A.A.F. 2014) (finding that a military judge’s analysis and application of the law
clearly warrants deference if he places it on the record and less deference will be
accorded if he does not do so).

                                        Conclusion

      The military judge’s ruling to dismiss the case with prejudice is vacated, and the
record will be returned to the military judge for action consistent with this opinion.



                                             13                          Misc. Dkt. No. 2014-15
Accordingly, the appeal of the United States under Article 62, UCMJ, is hereby
GRANTED.



            FOR THE COURT


            STEVEN LUCAS
            Clerk of the Court




                                      14                      Misc. Dkt. No. 2014-15
