                        UNITED STATES, Appellee

                                     v.

               Aaron J. GUDMUNDSON, Airman First Class
                      U.S. Air Force, Appellant


                               No. 02-0264


                         Crim. App. No. S29944



       United States Court of Appeals for the Armed Forces

                        Argued October 16, 2002

                       Decided December 19, 2002

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

                                  Counsel
For Appellant: Captain Antony B. Kolenc (argued); Lieutenant
   Colonel Beverly B. Knott, Major Terry L. McElyea, and Major
   Jeffrey A. Vires (on brief).
For Appellee: Captain C. Taylor Smith (argued); Lieutenant
   Colonel LeEllen Coacher and Lieutenant Colonel Lance B.
   Sigmon (on brief); Captain Adam Oler and Captain Suzanne
   Sumner.

Military Judge:    Israel B. Willner


  This opinion is subject to editorial correction before final publication.
United States v. Gudmundson, No. 02-0264/AF


       Judge GIERKE delivered the opinion of the Court.

       A military judge sitting as a special court-martial

convicted appellant, pursuant to his pleas,1 of wrongful use of

lysergic acid diethylamide (LSD), in violation of Article 112a,

Uniform Code of Military Justice, 10 U.S.C. § 912a (2002).         The

adjudged and approved sentence provides for a bad-conduct

discharge, confinement for three months, and reduction to the

lowest enlisted grade.      The Court of Criminal Appeals affirmed

the findings and sentence in an unpublished opinion.

       This Court granted review of the following issue:

            WHETHER THE CONVENING AUTHORITY, WHO TESTIFIED AT THE
            COURT-MARTIAL PURSUANT TO A DISPOSITIVE SUPPRESSION
            MOTION, WAS DISQUALIFIED FROM THEREAFTER TAKING R.C.M.
            11072 ACTION IN THIS CASE.
We hold that any issue regarding the convening authority’s

disqualification was waived.

                            Factual Background

       During the early hours of November 18, 2000, the first 100

airmen coming back onto Little Rock Air Force Base, Arkansas,

between the hours of 3:00 a.m. and 6:00 a.m., were required to
provide a urine sample.       Appellant was one of those airmen.    His

urine sample tested positive for LSD.         The issue at trial was




1
  Appellant’s guilty plea was conditional under the provisions of
Rule for Courts-Martial 910(a)(2) [hereinafter R.C.M.], and it
allowed him to preserve for appellate review his assertion that
the evidence against him was the product of an unlawful search
and seizure. Appellant raised the issue before the Court of
Criminal Appeals as well as this Court, but this Court did not
grant review of the issue.
2
    R.C.M. 1107.


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whether the urinalysis results were the product of a valid

inspection or an unlawful search.         See Military Rule of Evidence

313(b).

      At trial, Appellant moved to suppress the urinalysis results

and the evidence derived from the urinalysis.         In response, the

Government presented the testimony of Brigadier General (Brig

Gen) Paul Fletcher, the base commander and the convening

authority for this case.       Brig Gen Fletcher had given the order

to execute the plan, dubbed Operation Nighthawk, for collecting

urine samples from airmen returning to the base.

      Trial counsel asked Brig Gen Fletcher, “[W]hat was your

primary purpose in issuing that order?”         Brig Gen Fletcher

explained that Operation Nighthawk was designed to obtain random

urine samples on the weekend before the drugs were out of the

airmen’s bodies.     He testified that “his ultimate goal” was to

deter drug use “or at least make them think twice about going and

doing something on a weekend, knowing that there’s potential that

they may very well get tested on the weekend.”         He testified that

deterrence was necessary, “because we all know we don’t want our

kids out there working on airplanes, driving vehicles, doing very

dangerous things, who have a propensity, or are using illegal

drugs.”

      Brig Gen Fletcher testified that the command had begun

planning for Operation Nighthawk two or three weeks prior to

November 18.    After they began planning, they learned that a rave

was scheduled off base on the night of November 17-18, which also

coincided with the mid-month payday.          Brig Gen Fletcher decided




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to schedule Operation Nighthawk to coincide with the rave and the

mid-month payday.

      Brig Gen Fletcher’s understanding of a rave, was that it

involved “a very young collection of kids getting together to

have a great time.”      He understood that a rave included “a lot of

music, which is pretty typical, a lot of lights, a lot of glitz,

but on the other side, there are reports – validated reports – of

a lot of drug use, alcohol, potentially sexual acts going on.”

      Brig Gen Fletcher testified that he had no specific

knowledge that Appellant or any other military member intended to

participate in the rave.       Brig Gen Fletcher suspected that drugs

would be used at the rave but he had no specific knowledge or

reports indicating that drugs would be used.

      The prosecution presented four stipulations of expected

testimony from members of the command involved in the planning

and execution of Operation Nighthawk: Special Agent Christopher

Holton, commander of the local detachment of the U.S. Air Force

Office of Special Investigations; Captain Joseph Engelbrecht III,

who was then the Operations Officer for the base Security Forces

Squadron; Lieutenant Colonel Daniel Rogers, the staff judge

advocate; and Master Sergeant Michael Cook, administrative

manager for the drug testing program.         All four stipulations of

expected testimony were consistent with Brig Gen Fletcher’s

testimony.

      In response to questions by the military judge, Brig Gen

Fletcher testified that he personally addresses new members of

the command at a “Right Start” briefing.        He testified that in

his briefing he tells new airmen that there is a significant drug


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problem in the Little Rock area and that drug use is

“incompatible with Air Force service.”

      The defense did not present any evidence on the motion to

suppress.    In its written motion as well as its oral argument on

the motion, the defense asserted that Operation Nighthawk was a

pretext and a subterfuge for an illegal search.

      The military judge denied the motion to suppress.     The staff

judge advocate did not mention the motion in his post-trial

recommendation.     Appellant did not challenge the validity of the

inspection in his post-trial submission.      In his clemency

petition, appellant reminded Brig Gen Fletcher that he had

testified at the court-martial, but he did not ask Brig Gen

Fletcher to disqualify himself.

                                 Discussion
      Appellant now asserts that the convening authority should

have disqualified himself because he testified on controverted

matters, had a personal interest in the litigation, and was put

in a position where he was required to review his own actions.

The Government asserts that Appellant “forfeited”3 the issue by
failing to object to the convening authority’s post-trial

involvement in the case.




3
  The Government uses the term “forfeited,” used by the Supreme
Court in United States v. Olano, 507 U.S. 725, 732-34 (1993), to
describe a failure to preserve an issue by timely objection. See
United States v. Powell, 49 M.J. 460, 463-64 (C.A.A.F. 1998).
The Rules for Courts-Martial use the term “waived” rather than
“forfeited” to describe a failure to preserve an issue by timely
objection. See, e.g., R.C.M. 801(g), 905(e), 919(c), 920(f),
1001(g), 1005(f), and 1106(f)(6). Accordingly, we will use the
term “waived” instead of “forfeited.”


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      A convening authority’s testimony at trial is not per se

disqualifying, but it may result in disqualification if it

indicates that the convening authority has a “personal connection

with the case.”     United States v. McClenny, 5 C.M.A. 507, 512-13,

18 C.M.R. 131, 136-37 (1955).        However, “if [the convening

authority’s] testimony is of an official or disinterested nature

only,” the convening authority is not disqualified.          Id. at 513.

      Based on these principles, this Court has held that a

convening authority was not disqualified by testifying about his

authorization for a search.       United States v. Cansdale, 7 M.J.
143 (C.M.A. 1979).      However, where the convening authority’s

testimony authenticating an official document required him to

later determine the factual accuracy of that document, this Court

held that the convening authority was disqualified.          McClenny, 5

C.M.A. at 512-13; 18 C.M.R. at 136-37.          Similarly, where the

convening authority’s testimony on a speedy-trial issue made it

necessary for him to review his own diligence in processing the

case, this Court held that his testimony was disqualifying.

United States v. Reed, 2 M.J. 64 (C.M.A. 1976).
      If an appellant fails to make a timely motion or objection

raising the disqualification issue, the issue may be waived.           See

United States v. Shiner, 40 M.J. 155, 157 (C.M.A. 1994); United

States v. Jeter, 35 M.J. 442, 447 (C.M.A. 1992).          Where, however,

an appellant was unaware of the ground for disqualification, this

Court has declined to apply waiver.           United States v. Fisher, 45

M.J. 159, 163 (C.A.A.F. 1996).        We review issues of waiver and

plain error de novo, as questions of law.          See United States v.

Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).


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      We hold that the issue was waived in this case.   Appellant

was aware of the convening authority’s involvement, but he chose

to not raise the disqualification issue at trial or in his post-

trial submission to the convening authority.   See Fisher, 45 M.J.

at 161-62; Jeter, 35 M.J. at 447.

                                  Decision

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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