

   
   
   
   U.S. v. Johnson



UNITED STATES, Appellee
v.
Charles W. JOHNSON, Lieutenant, Dental Corps
U. S. Navy, Appellant
 
No. 96-0669
Crim. App. No. 94-1674
 
United States Court of Appeals for the Armed
Forces
Submitted September 10, 1999
Decided August 31, 2000
COX, S.J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and GIERKE and EFFRON, JJ., joined. SULLIVAN,
J., filed an opinion concurring in the result.
Counsel
For Appellant: Lieutenant Commander Robert
C. Klant, JAGC, USN.
For Appellee: Colonel Kevin M. Sandkuhler,
USMC, Commander Eugene E. Irvin, JAGC, USN, and Captain Danny
R. Fields, USMC.
Military Judge: E. D. Clark
 
 


This opinion is subject
to editorial correction before publication.



Senior Judge COX delivered the opinion of the
Court.
This case is before us for a second time, following
an evidentiary hearing that we ordered to determine whether unlawful command
influence played any role in the posttrial processing of the case. 46 MJ
253 (1997). On initial presentation to the Court of Criminal Appeals and
to this Court, appellant raised a series of allegations suggesting that
a variety of unlawful influences were brought to bear and that he was prejudiced
thereby. Following a thorough review and oral argument, a majority of this
Court agreed that appellants allegations, and such other factors as then
appeared, warranted at least a hearing to resolve the contentions. Cf.
United
States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).
In due course, a military judge was appointed,
and a "DuBay" hearing was convened to examine the evidence. The
burden of establishing unlawful command influence fell on appellant. At
the conclusion of the hearing, the military judge made extensive findings
of fact, and he concluded that no improper influence occurred. Thereafter,
the record was reviewed by the Court of Criminal Appeals, and in an unpublished
opinion, it agreed with the military judge.
Upon appellant's petition, we grant review
of the following issue:



WHETHER THE LOWER COURT ERRED IN FINDING
THAT UNLAWFUL COMMAND INFLUENCE PLAYED NO ROLE IN THE POST-TRIAL PROCESSING
OF APPELLANT'S CASE.



Upon reviewing the DuBay record, we hold
that the lower courts did not err in concluding that unlawful command influence
was not present in the case.
As we noted in United States v. Wallace,
39 MJ 284, 286 (CMA 1994), "[w]here the issue of unlawful command influence
is litigated on the record, the military judge's findings of fact are reviewed
[by us] under a clearly-erroneous standard, but the question of command
influence flowing from those facts is a question of law that this Court
reviews de novo." The initial burden of raising evidence
of command influence is on the defense. United States v. Ayala,
43 MJ 296, 299 (1995). However, "[p]roof of [command influence] in the
air, so to speak, will not do." United States v. Allen, 33 MJ 209,
212 (CMA 1991). Once raised by evidence, "the appearance or existence of
unlawful command influence creates a rebuttable presumption of prejudice."
Wallace,
supra.
There is no disagreement regarding the underlying
facts. Appellant was a Navy dentist assigned to Naval Hospital, Camp Pendleton,
California. He pleaded guilty, before a military judge sitting alone as
a general court-martial, to two specifications of committing oral sodomy
on his 15-year-old son and to one specification of taking indecent liberties
with the son, in violation of Articles 125 and 134, Uniform Code of Military
Justice, 10 USC §§ 925 and 934.1
Essentially, appellant contends that the original
convening authority was leaning toward suspending a dismissal, if adjudged,2
and that appellants immediate commander, Captain (Capt) James L. Staiger,
USN, the hospital commander, strongly supported such a suspension. However,
due to a change of command, a new convening authority was in place at the
time appellants punitive discharges was approved, and Capt Staiger, over
a period of months, changed his mind and did not go to bat for appellant.
Appellant deduces that improper influences must have been brought to bear
on Capt Staiger and, to a lesser
extent, on the new convening authority, Major
General (MajGen) Claude W. Reinke, USMC. There is no contention that MajGen
Reinke was ever leaning towards suspending a dismissal, if adjudged.3
The DuBay judge received the depositions
of both MajGen Reinke and Capt Staiger, as well as the depositions, testimony,
and stipulations of numerous other witnesses, including the predecessor
convening authority. In sum, the judge concluded that no improper communications
occurred, and the Court of Criminal Appeals agreed.
We need not recite at length the vast quantity
of facts uncovered and reported by the DuBay judge. Being a court
without factfinding authority,4
suffice it to say that Capt Staiger, as hospital commander, wore at least
three different hats regarding appellant. On the dental-practice side,
there were issues of appellants privileges at the hospital. A peer review
was conducted, recommendations were made at the local level, and the matter
was reviewed by authorities at the Naval Bureau of Medicine. Ultimately,
the local recommendation was overruled, with the result that appellant
was barred from practicing dentistry on minors pending disposition of the
criminal charges.
Whether these medical-administrative matters
were properly conducted, whether the various discussions that arose and
opinions that were offered from the various corners of the Navy medical-dental
community were appropriate, or whether the right conclusion regarding privileges
was ultimately drawn, are not matters within our purview,5
unless they spilled over to and affected the criminal justice aspect of
the case. However, the facts, as found by the DuBay judge and amply
based on the evidence adduced, are that the medical-administrative matters
were handled entirely separate and apart from the matters on the criminal
justice side. No evidence to the contrary is identified or proffered by
appellant, nor have we discovered any in our own review. That appellants
personal conduct also triggered a dental-privileges action is not evidence
of unlawful command influence on the criminal action.
The second administrative hat worn by Capt
Staiger, as immediate commander, involved personnel matters. Suffice it
to say, because appellant was alleged to have committed acts of a homosexual
nature on his 15-year-old son, there were questions by many whether appellant
should be processed administratively for homosexual conduct, or whether
his case could be classified as an incest case and handled within family-advocacy
channels. Again, a local judgment call was made that appellant could be
handled within the family-advocacy program, a program that sometimes is
able to rehabilitate perpetrators and address the needs of their families.
Again, the record reflects that there was activity
up the personnel chain, and the appropriateness of the decision to handle
appellant within the family-advocacy framework was questioned at levels
as high as the Navy Personnel Bureau (BUPERS). It also happens that an
internal BUPERS memorandum pertaining to the matter was apparently leaked
by an unauthorized (and unknown) person to the press, and that the existence
of the memo ultimately became known to Capt Staiger (but not to MajGen
Reinke). Again, however, there is no evidence that anyone on the personnel
side of the Navy contacted anyone on the military justice side. The fact
that appellants personal conduct triggered actions and opinions of a personnel-administrative
nature did not demonstrate in this case that there was unlawful command
influence on the criminal action.6
Appellant also complains that there was evidence
that one or more members of the Naval Investigative Service involved in
investigating appellants case used the Inspector General of the Navys
hotline to express their concerns with the direction appellants case was
taking. Apparently, the agents were concerned that, notwithstanding his
admissions, appellant was being allowed to continue the practice of dentistry
on minors. The evidence adduced at the DuBay hearing suggests that
the Inspector General requested information from various officials on the
progress of both the criminal and administrative aspects of the case, but
recognizing the command influence implications, he took no action and made
no attempt to influence anyone. No evidence of improper command influence
on the part of the Inspector General has been identified by appellant or
discovered by us.
Another dry hole unearthed at the DuBay
hearing was an arguable attempt by the Force Dental Officer, at
the command above MajGen Reinkes, to influence his commander, the Commanding
General, Fleet Marine Forces Pacific (FMFPAC), in order to insure that
appellants dismissal, if adjudged, was approved. The record reflects that
the FMFPAC commander recognized the command influence implications and
declined to get involved, and that he contacted no one. The Force Dental
Officers interest in the case was reported to MajGen Reinke, however,
through the medium of the respective staff judge advocates, with the result
that MajGen Reinke got "a little bit incensed" and declared that "I wont
take a phone call if he [the FMFPAC commander] tries to call me." He did
not. There is no evidence of record of an attempt by higher command to
influence MajGen Reinke.
A final component of appellants contention
seems to be based on a chance meeting he and his wife had with the hospital
executive officer (XO). According to appellants wife, the XO indicated
to them that the adverse publicity and the hotline complaint had caused
the hospital commander, Capt Staiger, to bail out on supporting appellant.
The XO recalled having had one or more conversations
with appellant, but he only vaguely recalled the content. He emphatically
denied that adverse publicity, or hotline complaints, or other outside
pressure had an impact on appellants criminal case, or ever saying they
would. He allowed, however, that adverse publicity can "have an impact
on peoples view of health care in any medical institution."
Capt Staiger explained that his support for
appellants retention in service began to wane after he got "a less favorable
report" on appellants progress from the Family Service Center, and indeed
documentary evidence of such an
adverse report was adduced at the DuBay
hearing. MajGen Reinke, as indicated, never seriously considered suspending
appellant's dismissal.
In sum, no evidence of unlawful command influence
was adduced at the DuBay hearing. Hence, the military judge's findings
were not "clearly erroneous," and no presumption of prejudice arose.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 As noted
by the Court of Criminal Appeals in its most recent opinion in the case,
our previous opinion stated that appellant was also convicted of a specification
of committing indecent acts upon his son, in violation of Article 134,
UCMJ, 10 USC § 934. This was incorrect. Although appellant pleaded
guilty to such a specification, the military judge dismissed the specification
as being multiplicious with one of the oral sodomy specifications.
2
It was stipulated by the parties at the DuBay hearing that the original
convening authority, if called to testify, would deny that he "even considered
that [suspending a dismissal] in light of the nature and severity of the
offenses," and that he did "not recall saying that he would consider [it]."
It was also stipulated that trial defense counsel, if called as a witness,
would testify that neither the original convening authority nor his legal
advisors had "ever expressed to me that the convening authority had decided
to suspend the dismissal or would promise to suspend the dismissal. I did
not believe that myself or LT Johnson had an agreement with the convening
authority that if awarded, a dismissal would be suspended."
3
At the point MajGen Reinke became involved in the case, the pretrial agreement
had already been struck by his predecessor. MajGen Reinke considered the
agreement "[v]ery lenient," and he asserted that he never had any thoughts
about suspending a dismissal.
4
Art. 67(c), UCMJ, 10 USC § 867(c).
5
Hence our denial of review of the second assigned issue.
6
Art. 37(a), UCMJ, 10 USC § 837(a), prevents a convening authority
or anyone else "subject to this chapter" from unlawfully attempting to
influence a court-martial. Press coverage does not constitute unlawful
command influence.


SULLIVAN, J. (concurring in result):
I disagree with the majoritys conclusion that
"unlawful command influence was not present in this case." ___ MJ (3).
In my view, the DuBay hearing found only that any unlawful influence
in this case did not prejudice appellant because it was ineffective, i.e.,
"Not the product of unlawful command influence." (DuBay Hearing
Findings of Fact and Conclusions). See United States v. Biagase,
50 MJ 143, 151 (1999). I will not condone the unauthorized leaking of a
government memorandum to the press by anonymous sources, particularly where
it might adversely affect the court-martial approval process. See
United States v. Levite, 25 MJ 334, 338 (CMA 1987); United States
v. Karlson, 16 MJ 469, 474 (CMA 1983) (stating that "it is well established
that unlawful command influence may assume many forms, may be difficult
to uncover, and affects court members in unsuspecting ways").


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