UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                      CAMPANELLA, SALUSSOLIA, and FLEMING
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                 First Lieutenant CHRISTOPHER S. SCHLOFF
                          United States Army, Appellant

                                  ARMY 20150724

                  Headquarters, 8th Army (convened and action)
Headquarters, Army Combined Arms Center and Fort Leavenworth (DuBay Hearing)
                  Wendy P. Daknis, Military Judge (arraignment)
            Mark A. Bridges, Military Judge (motions hearing & trial)
               Tiernan P. Dolan, Military Judge (post-trial hearing)
                Douglas Watkins, Military Judge (DuBay Hearing)
              Colonel Marian Amrein, Staff Judge Advocate (pretrial)
          Colonel Craig A. Meredith, Staff Judge Advocate (post-trial)

For Appellant: Captain Ryan T. Yoder, JA; Mr. Philip D. Cave, Esquire (on brief);
Lieutenant Colonel Christopher D. Carrier, JA; Mr. Philip D. Cave, Esquire (on
reply brief).

For Appellee: Major Michael E. Korte, JA; Captain Jonathan S. Reiner, JA (on
brief).

                                   5 February 2018

                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

FLEMING, Judge:

       In this case, the government has failed to rebut that unlawful command
influence (UCI) occurred during the panel’s deliberations on findings and it had no
prejudicial impact on appellant’s court-martial. As such, we set aside appellant’s
findings and sentence and authorize a rehearing.

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of abusive sexual contact by touching a
stethoscope to the breasts of a noncommissioned officer in violation of Article 120,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012). The panel
acquitted appellant of two specifications alleging the same action in violation of
SCHLOFF—ARMY 20150724

Article 120, UCMJ, against two other soldiers. The convening authority approved
the adjudged sentence of a dismissal.

                                  BACKGROUND

       In the course of our Article 66, UCMJ, review appellant alleged UCI occurred
during the panel’s deliberations on findings. 1 Appellant’s allegations derived from a
sworn declaration from a panel member, Lieutenant Colonel (LTC) JV, who asserted
“two members argued that politically, the United States Army could not afford to
seem weak on sexual harassment and assault” during the panel’s deliberations on
findings. After reviewing LTC JV’s declaration, we found appellant met his burden
to produce evidence, if true, which constituted UCI and ordered a hearing pursuant
to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

       Panel membership during deliberations on findings consisted of two colonels,
three lieutenant colonels, one major, and one captain. All these members testified at
the DuBay hearing. Comments by the two senior members of the panel, Colonels
(COLs) JW and AM, are the nucleus of this appeal. We adopt the DuBay military
judge’s findings of fact:

                    At the beginning of deliberations on findings of
             appellant’s court-martial, the president and senior ranking
             member of the panel, [COL JW], made a statement to the
             effect that based on the political climate, the Army could
             not seem weak or soft in dealing with sexual harassment
             or assault. He also asked a question to the effect of, ‘How
             does the Chief of Staff of the Army’s current emphasis on
             sexual harassment affect the findings and our decision in
             this matter?’ [COL AM] made some unspecified but
             similar comments or comments indicating agreement with
             [COL JW].

                    All the members had the ability to hear these
             statements and all members were engaged in the
             deliberations. The members debated these comments, with
             [two of the members] in disagreement with [COLs JW and
             AM]. The discussion regarded the general climate on
             sexual assault in the Army and in Korea at the time and


1
  We have reviewed appellant’s additional issues raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). We have determined appellant’s assertion
that the evidence was factually and legally insufficient lacks merit. We need not
address appellant’s other asserted issue as it is mooted by our decision.



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SCHLOFF—ARMY 20150724

            Army policy. [LTC JV] argued that the case should be
            decided on the merits and that ‘the outside’ shouldn’t be
            brought into the deliberations, or words to that effect. The
            members then debated the evidence and voted on findings.

                   With regard to the comments about the ‘climate,’
            [COL AM], the second senior member, believed the
            political climate ‘was put aside to deal with the facts,’ and
            was not further discussed. However, [LTC JV] stated the
            debate over the comments resulted in an ‘impasse’
            implying nothing was resolved about the comments. The
            comments were described variously as ‘innuendo,’
            ‘vague,’ ‘general,’ and as ‘the elephant in the room.’

                            LAW AND DISCUSSION

       With respect to UCI, we review a military judge’s findings of fact under a
clearly erroneous standard but his or her conclusions of law as to the existence of
UCI is reviewed de novo. United States v. Reed, 65 M.J. 487, 488 (C.A.A.F. 2008)
(citing United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994)). Military
members are prohibited from coercing or, by unauthorized means, influencing the
actions of any court member in reaching the findings or sentence in a case. UCMJ,
art. 37(a). “Use of superior rank or grade by one member of a court to sway other
members would constitute unlawful command influence . . .” Mil. R. Evid. 606(b)
analysis at A22-54; United States v. Dugan, 58 M.J. 253, 260 (C.A.A.F. 2003)
(recognizing a panel member can commit UCI by exerting the influence of superior
rank on junior members or purporting to “wear the mantle” of command authority
during the deliberative process). In the course of addressing allegations of UCI,
actual and apparent UCI must be considered. United States v. Simpson, 58 M.J. 368,
374 (C.A.A.F. 2003).

      As we previously determined, the defense met its initial burden to show some
evidence of UCI, which shifted the burden to the government to rebut the
presumption beyond a reasonable doubt. United States v. Stoneman, 57 M.J. 35, 41
(C.A.A.F. 2002) (citing United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F.
1999)). With respect to actual UCI, the government has three avenues to rebut the
presumption, by proving beyond a reasonable doubt:

            (1) the predicate facts on which the allegation of unlawful
            command influence is based do not exist;

            (2) the facts presented do not constitute unlawful
            command influence; or




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SCHLOFF—ARMY 20150724

             (3) the unlawful command influence had no prejudicial
             impact on this particular court-martial.

Dugan, 58 M.J. at 259 (citing Biagase 50 M.J. at 151); See also United States v.
Boyce, 76 M.J. 242, 249, n. 6 (C.A.A.F. 2017). With respect to apparent UCI, the
third avenue is different as it requires the government to prove beyond a reasonable
doubt that “the [UCI] did not place an intolerable strain upon the public’s perception
of the military justice system and that an objective disinterested observer, fully
informed of all the facts and circumstances, would not harbor a significant doubt
about the fairness of the proceeding.” Boyce, 76 M.J. at 249.

        Although we have an independent duty to determine the question of UCI de
novo, we concur with the DuBay military judge that actual and apparent UCI
occurred and the government failed to establish “beyond a reasonable doubt that UCI
. . . was not improperly brought to bear on any member during the findings phase of
[appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL
JW] injected policy and career concerns into the deliberations [and h]e did so
despite the military judge’s clear guidance that the case be decided solely on the
evidence presented in court and the instructions on the law given by the military
judge.” The UCI was a “palpable cloud throughout the deliberations” left to
permeate in each panel member’s decision-making process.

       Allowing this UCI to hover would prejudicially impact the fairness of
appellant’s court-marital. We, as did the DuBay military judge, cannot find beyond
a reasonable doubt that the panel president’s comments and the second senior-
ranking panel member’s comments at the beginning of deliberations had no unlawful
and prejudicial impact on one, some, or all of the seven members, particularly the
five junior members, and ultimately the outcome of appellant’s court-martial. As
the DuBay military judge aptly stated “it is difficult, if not impossible, for the
government to show beyond a reasonable doubt that the ‘discussion’ in this case had
no adverse impact on the appellant’s case when inquiry cannot be made into the
members’ thought processes.” 2 Further, a reasonable member of the public fully
informed of the facts could harbor a significant doubt about the fairness of the
proceedings in the mists of this UCI.

      Where the government has failed to meet its burden with respect to UCI, we
must fashion an appropriate remedy based on the facts of the specific UCI and the


2
  Although dealing with a prior iteration of the rule, our superior court’s holding in
Dugan is binding. The exceptions contained in Mil. R. Evid. 606(b)(2) do not
permit circumvention of the prohibition on inquiry into the effect on any member.
See Dugan, 58 M.J. at 259-60 (citations omitted) (“Members may testify ‘with
respect to objective manifestations of impropriety’ but may not testify ‘if the alleged
transgression is subjective in nature.’”).


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SCHLOFF—ARMY 20150724

damage to the public perception of fairness. United States v. Lewis, 63 M.J. 405,
416 (C.A.A.F. 2006). As long-recognized by our superior court “dismissal is a
drastic remedy and courts must look to see whether alternative remedies are
available.” United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004); see United
States v. Riesbeck, ___ M.J. ___, 2018 CAAF LEXIS 50, at * 26 (C.A.A.F. 2018)
(holding dismissal is appropriate if the UCI is “so obvious and so egregious” it
adversely impacts “not only Appellant’s right to a fair trial by an impartial panel,
but also the essential fairness and integrity of the military justice system”).

      Here, we determine the drastic remedy of dismissal with prejudice is
unwarranted. Setting aside the findings and sentence and authorizing a rehearing is
the appropriate remedy to eradicate the UCI. The UCI was not “so obvious or so
egregious” or of a nature to adversely impact the essential fairness and integrity of
the military justice system when it was committed by two panel members in
contravention of the military judge’s instructions and without government
knowledge or ratification. Authorizing a rehearing affords appellant the right to
receive a fair trial by an impartial panel.

      Despite our holding, we reiterate the protections afforded by Mil. R. Evid.
606(b), lest our opinion be misconstrued as authority emboldening anyone to
erroneously disregard the bedrock principle that member’s may not reveal “the effect
of anything on that member’s or another member’s vote; or any member’s mental
processes concerning the finding or sentence.” 3

                                   CONCLUSION

      The findings of guilty and sentence are SET ASIDE. A rehearing may be
ordered by the same or a different convening authority.

      Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

                                          FOR THE COURT:




                                          MALCOLM H. SQUIRES, JR.
                                          Clerk of Court


3
  See Mil. R. Evid. 606(b)(1). “[T]he purpose of [Mil. R. Evid. 606(b)] is to protect
‘freedom of deliberation,’ protect ‘the stability and finality of verdicts,’ and protect
court members ‘from annoyance and embarrassment.’” United States v. Loving, 41
M.J. 213, 236 (C.A.A.F. 1994) (quoting United States v. Bishop, 11 M.J. 7, 9
(C.M.A. 1981) (citing McDonald v. Pless, 238 U.S. 264, 267-68 (1915)).


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