          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                              Staff Sergeant PHILIP L. COVEL III
                                     United States Air Force

                                               ACM 38449

                                           11 February 2015

         Sentence adjudged 19 July 2013 by GCM convened at Moody Air Force
         Base, Georgia. Military Judge: Michael J. Coco.

         Approved Sentence: Bad-conduct discharge, confinement for 1 year,
         reduction to E-1, and a reprimand.

         Appellate Counsel for the Appellant:                Major Nicholas D. Carter and
         Major Jennifer J. Raab.

         Appellate Counsel for the United States: Lieutenant Colonel C. Taylor
         Smith; Captain Richard J. Schrider; Gerald R. Bruce, Esquire.

                                                  Before

                            MITCHELL, WEBER, and CONTOVEROS
                                  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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.



WEBER, Judge:

       The appellant providently pled guilty to one specification of willfully misusing his
government travel card, one specification of making a false official statement, one
specification of wrongfully using cocaine on divers occasions, four specifications of
forging checks, and one specification of dishonorably failing to pay a debt. The charges
and specifications represent violations of Articles 92, 107, 112a, 123, and 134, UCMJ,
10 U.S.C. §§ 892, 907, 912a, 923, 934. A panel of officer and enlisted members
sentenced the appellant to a bad-conduct discharge, confinement for 1 year, forfeiture of
all pay and allowances, reduction to E-1, and a reprimand. The convening authority
approved the sentence with the exception of the adjudged forfeitures.

       The appellant asserts that the military judge erred in denying the defense’s
unlawful command influence (UCI) motion by allowing the squadron commander who
preferred charges to attend the court-martial.

                                                Background

       The appellant, who had served in the Air Force for 19 years at the time of trial,
had a cocaine problem. He stated he became addicted to cocaine after Air Force medical
providers took him off prescription painkillers he had become dependent upon due to
medical conditions. At one point, the appellant was enrolled in a drug treatment program
for his dependency upon painkillers, but he failed out of that program. A random
urinalysis revealed the presence of the cocaine metabolite in the appellant’s system, and
an ensuing investigation uncovered significant financial misconduct by the appellant that
apparently related to his cocaine use. This financial activity included giving his
government travel charge card to a drug dealer to use in payment of a $2,000 drug debt
the appellant owed and altering checks the Air Force Aid Society provided to pay the
appellant’s bills by substituting the appellant’s name for that of the payee.

       Pursuant to a pretrial agreement, the appellant pled guilty to the charges and
specifications mentioned above. As part of the agreement, the convening authority
withdrew and dismissed three specifications. The convening authority also agreed not to
approve confinement in excess of 12 months and not to approve a dishonorable
discharge, but that agreement had no effect on the adjudged sentence.

                                     Unlawful Command Influence

       During sentencing, trial defense counsel objected to the appellant’s commander’s
presence in the gallery or near the courtroom. Trial defense counsel stated the
commander, who preferred charges in the case, had been in the gallery “for the past hour
or so.” Trial defense counsel also indicated that upon his request, the preferring
commander was removed from the gallery but remained sitting on a couch outside the
courtroom, near the entrance to the courtroom and in sight of the members during
recesses. Trial defense counsel further voiced concern over the fact that two of the
members during voir dire stated they knew the appellant’s commander, though only
professionally.1 Trial defense counsel did not raise any formal UCI motion regarding this
matter and did not request any relief other than having the commander removed from the

1
 The record reveals only one member, the panel president, expressed a familiarity with the preferring commander.
That member stated he only knew the preferring commander as a fellow squadron commander and saw him only at
meetings and at the squadron commander’s course. He did not have a personal relationship with the preferring
commander.


                                                       2                                          ACM 38449
members’ sight. Trial defense counsel indicated he believed case law supported his
position, but he did not have any case citations available at the moment.

        The military judge declined to order the commander’s removal, finding the
commander’s mere presence in the courtroom did not raise the issue of UCI. Later, the
military judge followed up on his ruling by citing United States v. Harvey, 64 M.J. 13
(C.A.A.F. 2006). In Harvey, the court noted that the convening authority appeared in the
courtroom wearing his flight suit during a case where the Government characterized the
appellant’s misconduct as a direct threat to the safety of the aviation community.
Id. at 19. The court held that this, in conjunction with the members’ familiarity with the
convening authority and indications that the members were looking at the convening
authority, raised some evidence of UCI that then required the Government to rebut.
Id. at 19–21. The military judge distinguished Harvey from the instant case, noting that
the preferring commander held no position of authority over any member, he did not
engage in any visible inappropriate behavior while in the courtroom, and he was in the
same uniform as other courtroom spectators and thus did not stand out. Civilian defense
counsel noted that Harvey was the case he was thinking of earlier, and that “there was a
meeting of the minds between [the military judge] and defense.” The defense did not
further raise this issue, and the record does not indicate whether the preferring
commander remained in the courtroom for the remainder of the proceedings.

       The pretrial agreement required the appellant to “waive all motions which may be
waived under the Rules for Courts-Martial.” Trial defense counsel’s UCI objection
occurred well after the military judge inquired if the appellant understood the meaning
and effect of this provision. Trial counsel did not allege that the appellant violated this
provision by raising the issue of the preferring commander’s presence in the room.

       When an appellant has intentionally waived a known right at trial, “it is
extinguished and may not be raised on appeal.”            United States v. Gladue,
67 M.J. 311, 313 (C.A.A.F. 2009) (citing United States v. Harcrow, 66 M.J. 154, 156
(C.A.A.F. 2008)). In United States v. Mezzanatto, 513 U.S. 196, 201 (1995), the
United States Supreme Court agreed that a criminal defendant “may knowingly and
voluntarily waive many of the most fundamental protections afforded by the
Constitution.”

       Article 37, UCMJ, 10 U.S.C. § 837, states any commanding officer may not
“censure, reprimand, or admonish the court or any member . . . with respect to the
findings or sentence adjudged by the court, or with respect to any other exercises of its or
his functions in the conduct of the proceedings.” The same article also prohibits any
person subject to the Code from attempting 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 . . . .”



                                             3                                  ACM 38449
       The appellant, on appeal, bears the initial burden of raising UCI. The “appellant
‘must show (1) facts which, if true, constitute [UCI]; (2) show that the proceedings were
unfair; and (3) show that [UCI] was the cause of the unfairness.’” United States v.
Richter, 51 M.J. 213, 224 (C.A.A.F. 1999) (quoting United States v. Biagase,
50 M.J. 143, 150 (C.A.A.F. 1999)). While more than a mere allegation or speculation is
required, the initial burden of showing potential UCI is low. United States v. Stoneman,
57 M.J. 35, 41 (C.A.A.F. 2002). The level of evidence necessary to raise UCI is “some
evidence.” Id. (quoting Biagase, 50 M.J. at 150) (internal quotation marks omitted).
Once the issue is raised by some evidence, the burden shifts to the Government to rebut
an allegation of UCI by persuading the court beyond a reasonable doubt that (1) the
predicate facts do not exist, (2) the facts do not constitute UCI, or (3) the UCI did not
have a prejudicial impact on the findings or sentence. Biagase, 50 M.J. at 151.

       Allegations of UCI are reviewed for actual as well as apparent UCI. “Even if
there was no actual UCI, there may be a question whether the influence of command
placed an ‘intolerable strain on public perception of the military justice system.’”
Stoneman, 57 M.J. at 42–43 (quoting United States v. Wiesen, 56 M.J. 172, 175
(C.A.A.F. 2001)). The test for the appearance of UCI is objective. “We focus upon the
perception of fairness in the military justice system as viewed through the eyes of a
reasonable member of the public.” United States v. Lewis, 63 M.J. 405, 415
(C.A.A.F. 2006). An appearance of UCI arises “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.

       The Government argues that under the “waive all waivable motions” pretrial
agreement provision, the appellant has waived his right to complain of the preferring
commander’s presence in or near the courtroom. We decline to apply waiver, for three
reasons. First, while there appears to remain some ambiguity on this issue, our superior
court has generally been reluctant to apply waiver to issues of UCI arising during trial.2

2
   See United States v. Riesbeck, __ M.J. __ No. 15-0074/CG (Daily Journal 11 December 2014) (concluding that
the issue of improper member selection was not waived and noting that “improper member selection can constitute
unlawful command influence, an issue that cannot be waived”); United States v. Hutchins, 72 M.J. 294, 312
(C.A.A.F. 2013) (Baker, C.J., dissenting) (“[W]e have never held that an issue of unlawful command influence
arising during trial may be waived by a failure to object or call the matter to the trial judge’s attention.”) (quoting
United States v. Baldwin, 54 M.J. 308, 310 n.2 (C.A.A.F. 2001)); United States v. Douglas, 68 M.J. 349, 356 n.7
(C.A.A.F. 2008) (“We note that this Court has not applied the doctrine of waiver where unlawful command
influence is at issue.”) (citing United States v. Johnston, 39 M.J. 242, 244 (C.M.A. 1994)); United States v.
Hamilton, 41 M.J. 32, 37 (C.M.A. 1994) (“Unlawful command influence at the referral, trial, or review stage is not
waived by failure to raise the issue at trial”; United States v. Blaylock, 15 M.J. 190, 193 (C.M.A. 1983) (“In view of
the policy clearly stated in Article 37, we have never allowed doctrines of waiver to prevent our considering claims
of improper command control. Indeed, to invoke waiver would be especially dangerous, since a commander willing
to violate statutory prohibitions against command influence might not hesitate to use his powers to dissuade trial
defense counsel from even raising the issue.” (internal citations omitted)). Cf. United States v. Richter, 51 M.J. 213,
224 (C.A.A.F. 1999) (finding allegation of unlawful command influence in preferral was waived by failure to raise
the issue at trial); United States v. Weasler, 43 M.J. 15, 19 (C.A.A.F. 1995) (“If an accused waives an allegation of
unlawful command influence in the preferral of charges by failure to raise a timely objection at trial, then surely an


                                                          4                                             ACM 38449
Second, the appellant did raise this issue at trial, and the Government did not contend that
he violated this provision of his pretrial agreement in so doing.

       Finally, we need not decide whether waiver applies to this issue because the
appellant’s claim roundly fails on its merits. The preferring commander merely sat in the
courtroom and on a couch near the courtroom. There is no evidence the squadron
commander engaged in any action that sought to influence the members. Only one
member knew the preferring commander, and then only on a professional basis at
meetings and training. The preferring commander did not hold any position of authority
over the members, and he was actually of a lower military rank than the one member who
did know him. None of the concerns present in Harvey are present in this case. Under
these facts, the appellant did not raise some evidence of UCI, and the military judge
properly declined to order the preferring commander to remove himself.

                                                  Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred.3 Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.



                 FOR THE COURT


                 STEVEN LUCAS
                 Clerk of the Court




accused, following a timely objection, should be permitted to initiate an affirmative and knowing waiver of an
allegation of unlawful command influence in the preferral of charges in order to secure the benefits of a favorable
pretrial agreement. To hold otherwise would deprive appellant of the benefit of his bargain.”).
3
  The court-martial order contains an error in that it states the appellant pled not guilty to Specification 1 of
Charge I. We have considered this clerical error and determined it is not prejudicial; however, we order a corrected
court-martial order. See Air Force Instruction 51-201, Administration of Military Justice, ¶ 10.10 (25 September
2014).


                                                         5                                            ACM 38449
