                         UNITED STATES, Appellee

                                         v.

                  Anthony L. REED, Master Sergeant
                        U.S. Army, Appellant

                                  No. 07-0114
                         Crim. App. No. 20030921

       United States Court of Appeals for the Armed Forces

                         Argued November 6, 2007

                       Decided February 12, 2008


EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel


For Appellant: Captain Patrick B. Grant (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Fansu Ku (on brief); Colonel John T. Phelps II.


For Appellee: Captain Nicole L. Fish (argued); Major Elizabeth
G. Marotta and Captain Larry W. Downend (on brief); Colonel John
W. Miller.



Military Judge:    Edward J. O’Brien



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Reed, No. 07-0114/AR


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of officer and enlisted

members convicted Appellant, pursuant to his pleas, of one

specification of making a false official statement and one

specification of fraud against the United States, in violation

of Articles 107 and 132, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 907, 932 (2000).   Contrary to his pleas, he

was convicted of a second specification of making a false

official statement and three specifications of larceny of

military property, in violation of Article 107, UCMJ, and

Article 121, UCMJ, 10 U.S.C. § 921 (2000).   The sentence

adjudged by the court-martial and approved by the convening

authority included a bad-conduct discharge, confinement for one

year, and reduction to the lowest enlisted grade.   The United

States Army Court of Criminal Appeals affirmed.   United States

v. Reed, No. ARMY 20030921 (A. Ct. Crim. App. Oct. 12, 2006)

(unpublished).

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

issue:

          WHETHER THE MILITARY JUDGE ERRED IN HIS
          FINDINGS OF FACT OR CONCLUSIONS OF LAW
          REGARDING UNLAWFUL COMMAND INFLUENCE.

     For the reasons set forth below, we conclude that the

military judge did not err in denying Appellant’s motion for




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United States v. Reed, No. 07-0114/AR


appropriate relief with respect to the claim of unlawful command

influence.

                           I.   BACKGROUND

     Appellant contends that the convening authority fostered a

command climate that tainted his court-martial with actual

unlawful command influence and the appearance of unlawful

command influence.    See Article 37, UCMJ, 10 U.S.C. § 837

(2000); Rule for Courts-Martial (R.C.M.) 104; United States v.

Stoneman, 57 M.J. 35 (C.A.A.F. 2002).    Section A summarizes the

standards applicable to claims of unlawful command influence.

Section B describes the litigation of the unlawful command

influence allegations in the present case.

                 A.    UNLAWFUL COMMAND INFLUENCE

     At trial, the burden of raising the issue of unlawful

command influence rests with the defense.    United States v.

Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999).    The defense must:

(1) “show facts which, if true, constitute unlawful command

influence” and (2) show “that the alleged unlawful command

influence has a logical connection to the court-martial, in

terms of its potential to cause unfairness in the proceedings.”

Id. (citation omitted).   “The threshold for raising the issue at

trial is low, but more than mere allegation or speculation.”

Id. (citation omitted).   The defense is required to present

“‘some evidence’” of unlawful command influence.    Id. (quoting


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United States v. Reed, No. 07-0114/AR


United States v. Ayala, 43 M.J. 296, 300 (C.A.A.F. 1995));

United States v. Simpson, 58 M.J. 368, 373 (C.A.A.F. 2003).

     If the defense meets the burden of raising the issue, the

burden shifts to the Government.       The Government must:   “(1)

disprove ‘the predicate facts on which the allegation of

unlawful command influence is based’; (2) persuade the military

judge ‘that the facts do not constitute unlawful command

influence’; or (3) prove at trial ‘that the unlawful command

influence will not affect the proceedings.’”      Simpson, 58 M.J.

at 373.   “Depending on the nature of the alleged unlawful

command influence and other pertinent circumstances, the

Government may demonstrate that unlawful command influence will

not affect the proceedings in a particular case as a result of

ameliorative actions.”   Id.   “Whichever tactic the Government

chooses, the quantum of proof is beyond a reasonable doubt.”

Id. (quoting Stoneman, 57 M.J. at 41).

     “In the course of addressing these issues, military judges

and appellate courts must consider apparent as well as actual

unlawful command influence.”   Simpson, 58 M.J. at 374.       “Where

the issue of unlawful command influence is litigated on the

record, the military judge’s findings of fact are reviewed under

a clearly-erroneous standard, but the question of command

influence flowing from those facts is a question of law that




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United States v. Reed, No. 07-0114/AR


this Court reviews de novo.”     United States v. Wallace, 39 M.J.

284, 286 (C.M.A. 1994).

                       B.   TRIAL PROCEEDINGS

     Appellant, while serving in Korea, claimed the Basic

Allowance for Housing (BAH) at the rate for married personnel.

At the time, he was divorced.    In that status, his BAH

entitlement was limited to the lower rate provided to unmarried

personnel.   In the present case he was charged with receiving

BAH payments that substantially exceeded the payments to which

he was entitled.

     Appellant filed a pretrial motion for appropriate relief on

the basis of unlawful command influence, requesting dismissal of

the charges, transfer of the case to another convening

authority, and other remedies.    During the proceedings on the

motion, the military judge considered documents provided by the

parties, testimony from the convening authority, the staff judge

advocate, and other members of the command, and the statements

of panel members on voir dire.

     In support of the allegation that the command climate

created unlawful command influence, the defense introduced an e-

mail from the convening authority to subordinates.    The e-mail,

which was transmitted subsequent to referral of Appellant’s case

to the court-martial, addressed a variety of command management

issues.   An attachment to the e-mail contained a thirty-one-page


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United States v. Reed, No. 07-0114/AR


slide show, which included the following statement on one of the

slides:   “Senior NCO and Officer misconduct -- I am absolutely

uncompromising about discipline in the leader ranks.”   The slide

noted the following examples:   “BAH Fraud, Fraternization, DUI,

Curfew violations, Soldier abuse, Sexual misconduct.”

     The defense also presented testimony that the deputy

commander of a subordinate unit told an audience at a

“Newcomer’s Briefing” that “BAH fraud is an automatic court-

martial referral here.”   The defense further offered the

testimony of a staff sergeant, who stated that soldiers in the

unit believed that BAH fraud would be handled more harshly than

other crimes.   In addition, the defense presented evidence that

during the period between preferral and referral, the convening

authority had communicated with Appellant’s rater and senior

rater about his evaluation, resulting in inclusion of derogatory

information about the pending charges in his annual performance

evaluation.

     With respect to the e-mail, the Government relied on

testimony and documentary evidence showing that the convening

authority, upon advice of her staff judge advocate, issued a

clarifying e-mail.   In the second e-mail, the convening

authority set forth the following explanation of the statement

that she was “absolutely uncompromising about discipline in the




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United States v. Reed, No. 07-0114/AR


leader ranks.”   The second e-mail, which included bold typeface,

stated:

          What that means simply is that I will abide
          by and enforce Army regulations and the
          Uniform Code of Military Justice as I swore
          to in my oath and as I am chartered to do as
          a commander. I will not look the other way,
          nor apply special dispensation on
          infractions by leaders (as young soldiers
          sometimes feel is the case). That said,
          that does NOT mean that each case is handled
          in the same manner or will have identical
          outcomes. Absolutely not, as a leader and
          commander I am also chartered, as are you
          all, to consider each case on its own
          merits, taking into account the totality of
          the alleged offense and the record of
          performance of the individual concerned as
          relayed by their written record, their chain
          of command, as well as their peers,
          subordinates, family and friends, or any
          other appropriate witness.

     With respect to Appellant’s performance evaluation, the

Government introduced evidence that Appellant’s rater had been

under the impression that he could not include evidence of

pending charges at the time he prepared the initial draft.    When

the draft evaluation reached the convening authority for

administrative review in her capacity as Appellant’s commander,

she sought the advice of her staff judge advocate as to the

propriety of referencing pending charges in such an evaluation.

He advised her that upon completion of the pretrial

investigation under Article 32, UCMJ, 10 U.S.C. § 832 (2000), it

was appropriate under applicable regulations to reference



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United States v. Reed, No. 07-0114/AR


pending charges in the performance evaluation.   See Dep’t of the

Army, Reg. 623-205, Personnel Evaluation, Noncommissioned

Officer Evaluation Reporting System paras. 2-13, 3-17 (May 15,

2002).    She conveyed that advice to the rater and senior rater,

noting that they were unconstrained as to the content of their

evaluation, but that she would not concur in a rating that she

believed to be incorrect.   The senior rater and the rater

reexamined the regulation and the draft evaluation.     After

concluding that the regulation permitted reference to derogatory

information in the evaluation following completion of the

Article 32 investigation, they revised the evaluation.    As

revised, the evaluation stated that Appellant did not meet the

Army standard for integrity.   In addition, both the rater and

the senior rater added negative comments about Appellant

concerning BAH fraud.

     The military judge permitted extensive voir dire of the

panel members with respect to the issue of unlawful command

influence.   Four panel members stated that they had received the

e-mail.   One was removed upon a challenge for cause.   A second

was removed upon a peremptory challenge by the defense.    During

voir dire, this member recalled that the e-mail addressed the

need to make sure that “things that you’ve put in place or fixed

are still fixed.”   He did not recall any specific focus on

military justice, but recalled mention of BAH fraud.    In terms


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United States v. Reed, No. 07-0114/AR


of the command’s approach, he stated that there was a philosophy

along the lines that if “something is not right you don’t do

it.”

       With respect to the other two members, one said that he

remembered an e-mail that covered the need for leaders to

reinforce proper behavior.   He recalled that “in that e-mail it

specifically stated somewhere along the lines that it amazes me

that, continue [sic] to see BAH fraud, something along that

line.”   The member added that he did not recall an attachment to

the e-mail.    He responded in the negative to the question as to

whether there was a “particular view” held by the command

structure with respect to BAH matters.   The other remaining

member stated that he viewed the e-mail as focusing on standards

of importance to the command, including BAH fraud.   He believed

that BAH cases were processed depending on the circumstances and

he was unaware of any pressure to handle BAH cases in a

particular manner.

       Officers in Appellant’s chain of command testified that

they exercised independent judgment when they decided to prefer

and forward charges of BAH fraud to the convening authority.

The Article 32 investigating officer said he was unaware of any

command policy directing disposition of BAH fraud and that he

believed a general court-martial was appropriate for the

allegations.


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United States v. Reed, No. 07-0114/AR

     The military judge made detailed findings of fact and

conclusions of law.   In his findings of fact, he found that the

actions of the convening authority with respect to Appellant’s

evaluation, which comported with applicable administrative

procedures, did not have an improper impact on the processing of

the charges against Appellant.    The military judge also found

that none of the officers involved in preferring, investigating,

or forwarding the charges had been pressured into making a

particular recommendation, and that all had made a

recommendation free from influence.    In addition, the military

judge found that the convening authority was not inflexible and

that she did not have a particular disposition towards punishing

certain crimes.   All defense requested witnesses were willing to

testify, and there was no evidence that any witnesses were

unwilling to testify for Appellant.    The military judge

concluded that the panel members were not tainted by unlawful

command influence, and that the proceedings were not otherwise

tainted by unlawful command influence.



                          II.    DISCUSSION

     On appeal, Appellant focuses primarily on apparent command

influence:   “The spectre of unlawful command influence . . . so

deeply permeated [A]ppellant’s court-martial, creating the

appearance of the command influencing the proceeding, that it


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United States v. Reed, No. 07-0114/AR

imposed an intolerable strain on the public perception of the

military justice system.”   During oral argument, counsel for

Appellant also suggested that because the commander’s e-mail was

received by two members who participated in the panel’s

deliberations, the case was infected by actual unlawful command

influence.

     For purposes of this appeal, we shall assume, without

deciding, that the evidence at trial was sufficient to raise the

issue of unlawful command influence.    In that context, the

Government was required to demonstrate beyond a reasonable doubt

that the fairness of the proceedings was not compromised by any

unlawful command influence.

     The two panel members who received the convening

authority’s e-mail were fully questioned during voir dire with

respect to whether it had an adverse impact on their ability to

render an impartial judgment.    See Stoneman, 57 M.J. at 41.    The

members’ answers demonstrated that they had little specific

recollection of the content of the e-mail, and that they did not

perceive that there was a command policy governing disposition

of BAH fraud cases.   No panel member testified to feeling any

pressure as a result of having received the email and there is

no evidence that they believed the command expected a certain

result from the court-martial.   We conclude that the Government




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United States v. Reed, No. 07-0114/AR

met its burden of demonstrating beyond a reasonable doubt that

the case was not infected by actual unlawful command influence.

     With respect to Appellant’s contention that the case was

tainted by the appearance of unlawful command influence, our

evaluation is highly case-specific.   See Simpson, 58 M.J. at

376-77.   In addition to considering the specific words at issue

in the context of the charged offenses, we also take into

account factors such as the means and scope of dissemination,

remedial action within the command in general and with respect

to potential court members in particular, the degree to which

the record itself demonstrates that the defense has had a full

opportunity to explore the issue, whether the Government has

been forthcoming in its response, and whether the military judge

has taken any necessary corrective action.   Id. at 376.

     The record in the present case reflects that the convening

authority, upon advice from her staff judge advocate, took

prompt remedial action, in the form of a corrective e-mail when

informed of possible adverse implications of the initial e-mail.

The e-mail itself was a lengthy document, in which only a small

portion contained matters of concern, and the record indicates

that few members of the command had a specific recollection of

the details of the e-mail.

     Likewise, the record contains only isolated accounts of a

negative command climate adverse to the defense, none of which


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United States v. Reed, No. 07-0114/AR

impacted witnesses or panel members.    The record does not

reflect that any of the panel members attended the “Newcomer’s

Briefing” or were otherwise informed of the “automatic court-

martial referral” comment from that briefing.   The discussions

about Appellant’s performance evaluation reflect a difference of

opinion over the permissible content of a noncommissioned

officer’s efficiency report.   The record does not establish that

the convening authority pressured the rater or senior rater to

change their evaluations, nor does the record reflect that any

panel member was aware of these discussions.

     In assessing the issue of unlawful command influence, we

take into account the full and open litigation of the issue and

the evidence adduced at trial.   United States v. Campos, 42 M.J.

253, 261 (C.A.A.F. 1995).   The defense had a full opportunity to

present witnesses and documents on the issue of unlawful command

influence.   The Government presented extensive testimony from

the convening authority, the staff judge advocate, and members

of the chain of command about the processing of charges against

Appellant, and the defense had a full opportunity to cross-

examine these witnesses.    The military judge provided counsel

with an opportunity for exploration of the pertinent issues

during voir dire of panel members.    As noted above, the members

who sat on the panel did not have a specific recollection of the

negative command climate information presented by the defense.


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United States v. Reed, No. 07-0114/AR

Under the circumstances of this case, we conclude that the

Government has met its burden of demonstrating beyond a

reasonable doubt that the fairness of the court-martial

proceedings was not compromised by unlawful command influence.

See Simpson, 58 M.J. at 376-77.



                         III.     DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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