MISCELLANEOUS MATTERS: Command Influence: Burdens

2022(October Term)

United States v. Gilmet, 83 M.J. 398 (to establish a prima facie claim of actual UCI, the accused bears the burden of presenting some evidence of facts that if true, would constitute UCI); although this initial burden is low, the accused must present more than mere allegations or speculation; once the accused satisfies his burden, the burden shifts to the government to prove beyond a reasonable doubt that the UCI will not affect the proceeding; in the alternative, the government can also disprove the predicate facts upon which the UCI allegation is based or persuade the court that the facts do not constitute UCI). 

2020(October Term)

United States v. Proctor, 81 M.J. 250 (an accused who asserts there was an appearance of unlawful command influence bears the initial burden of showing some evidence that unlawful command influence occurred; although this is a low burden, the evidence presented by an appellant to establish his prima facie case must consist of more than mere allegation or speculation).    

(if the accused presents some evidence of unlawful command influence, the burden shifts to the government to prove beyond a reasonable doubt that either: (a) the predicate facts proffered by the appellant do not exist, or (b) the facts as presented do not constitute unlawful command influence; if the government fails to rebut the accused’s factual showing, it may still prevail if it proves beyond a reasonable doubt that the unlawful command influence 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). 

2019 (October Term)

United States v. Bergdahl, 80 M.J. 230 (to make a prima facie case of apparent unlawful command influence, an accused bears the initial burden of presenting some evidence that unlawful command influence occurred; this burden on the defense is low, but the evidence presented must consist of more than ‘mere allegation or speculation). 

(once an accused meets the some evidence threshold for a prima facie case of apparent unlawful command influence, the burden shifts to the government to prove beyond a reasonable doubt that either the predicate facts proffered by the appellant do not exist, or the facts as presented do not constitute unlawful command influence; if the government cannot succeed at this step, it must prove beyond a reasonable doubt that the unlawful command influence 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).    

2017 (October Term)

United States v. Barry, 78 M.J. 70 (appellant bears the initial burden of raising an issue of unlawful influence). 

(in order to succeed on appeal with respect to the issue of unlawful influence, appellant must establish: (1) facts, which if true, constitute unlawful influence; (2) unfairness in the court-martial proceedings (i.e., prejudice to appellant); and (3) that the unlawful influence caused that unfairness; while appellant’s initial burden is low, it requires more than mere allegation or speculation; instead, appellant must show some evidence in order to sufficiently raise the issue).

(once appellant meets his initial burden of raising an issue of unlawful influence, the burden shifts to the government to rebut the allegation by persuading the court beyond a reasonable doubt that: (1) the predicate facts do not exist; (2) the facts do not constitute unlawful influence; or (3) the unlawful influence did not affect the findings or sentence). 

(in this case, appellant met his initial burden by successfully showing some evidence of facts which constitute unlawful influence on the part of the DJAG based on a conversation that the DJAG had with the convening authority in which he left the convening authority with the impression that not affirming the findings and sentence in appellant’s case would put a target on the convening authority’s back and on a later conversation in which the DJAG left the impression on the convening authority that approving the findings and sentence in an action that detailed his strong concerns was the best he could do in appellant’s case). 

(in this case where appellant met his initial burden of raising the issue of unlawful influence, the government failed to rebut the allegation beyond a reasonable doubt where the record clearly demonstrated that, but for external pressures including, but not limited to, the DJAG’s improper advice, the convening authority would have taken different action in appellant’s case). 

2016 (October Term)

United States v. Chikaka, 76 M.J. 310 (an appellant has an initial burden of presenting some evidence of unlawful command influence; this some evidence standard is low, although an appellant must allege more than mere allegation or speculation; once an appellant has met this initial evidentiary burden, the burden shifts to the government to rebut the allegation of UCI beyond a reasonable doubt). 

(in this case, appellant presented sufficient evidence of unlawful command influence during the sentencing phase of his court-martial to cause the burden to shift to the government to disprove unlawful command influence beyond a reasonable doubt, where appellant’s commanding officer, who outranked the entire court-martial panel and was within the chain of command of at least one member, was permitted to testify at some length about the importance of a harsh sentence being imposed by the court-martial; this testimony constituted some evidence of unlawful command influence). 

United States v. Shea, 76 M.J. 277 (in this case, appellant failed to establish some evidence of apparent unlawful command influence where his claim amounted to no more than a claim of command influence in the air; although appellant claimed that apparent unlawful influence existed because the JAG had inappropriately assigned one of the judges on his original panel to a perform other duties and thereafter that judge had been removed from the panel by the CCA’s chief judge, neither action taken by the JAG or chief judge was inappropriate or unlawful; appellant failed to present any evidence that a plan or scheme to unlawfully remove that judge existed, and appellant’s speculation as to motive was insufficient). 

United States v. Boyce, 76 M.J. 242 (when an appellant asserts that there was an appearance of unlawful command influence, he initially must show some evidence that unlawful command influence occurred; this burden on the defense is low, but the evidence presented must consist of more than mere allegation or speculation).    

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (allegations of unlawful command influence are reviewed by an appellate court de novo). 

(on appeal, the accused bears the initial burden of raising unlawful command influence; appellant must show:  (1) facts, which if true, constitute unlawful command influence, (2) that the proceedings were unfair, and (3) that the unlawful command influence was the cause of the unfairness; thus, the initial burden of showing potential unlawful command influence is low, but is more than mere allegation or speculation; the quantum of evidence required to raise unlawful command influence is some evidence).    

(once an issue of unlawful command influence is raised by some evidence, the burden shifts to the government to rebut an allegation of unlawful command influence by persuading the court beyond a reasonable doubt that (1) the predicate facts do not exist, (2) the facts do not constitute unlawful command influence, or (3) the unlawful command influence did not affect the findings or sentence).          

(allegations of unlawful command influence are reviewed for actual unlawful command influence as well the appearance of unlawful command influence; even if there was no actual unlawful command influence, there may be a question whether the influence of command placed an intolerable strain on public perception of the military justice system; the test for the appearance of unlawful influence is objective, focusing upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; an appearance of unlawful command influence 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). 

2009 (September Term)

United States v. Douglas, 68 M.J. 349 (once unlawful command influence is raised at the trial level, a presumption of prejudice is created; to affirm in such a situation, an appellate court must be convinced beyond a reasonable doubt that the unlawful command influence had no prejudicial impact on the court-martial). 

(while the defense counsel, after a lengthy continuance to implement the military judge’s remedy for the unlawful command influence, had no further objections or motions and did not request additional time, the burden of proof was on the government, and the record did not itself reveal that all portions of the remedy crafted were implemented; thus, while the accused’s acquiescence and silence were factors to consider, factors that make this a close case on this record, given that the burden of proof was on the government, the CAAF could not be convinced beyond a reasonable doubt that the taint from the unlawful command influence did not prejudice the accused by depriving him of the benefit of testimony from character witnesses during the findings and sentencing portions of his court-martial, where the accused presented no favorable character testimony during his court-martial, the government had not shown that presentation of a good character defense was unfeasible, and the government had not met its burden of showing that the character evidence would have been completely ineffective; further, the record reveals that the accused maintained his innocence even after his conviction and that much of the evidence against him came solely from the victim’s own testimony).

(when a military judge crafts a reasonable and tailored remedy to remove unlawful command influence, and if the record reflects that the remedy has been implemented fully and no further objections or requests were made by the defense, then rather than requiring the government to prove a negative, an appellate court would be satisfied that the presumptive prejudice had been eliminated; however, when the record fails to include evidence that key components of the remedy were implemented, the presumption of prejudice flowing from the unlawful command influence has not been overcome; the government must then find an alternative way to meet its burden). 

United States v. Ashby, 68 M.J. 108 (an accused has the initial burden of raising the issue of unlawful command influence; this burden at trial is to show facts which, if true, constitute unlawful command influence, and 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; on appeal, the defense must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the cause of the unfairness; mere speculation that unlawful command influence occurred because of a specific set of circumstances is not sufficient). 

United States v. Harvey, 64 M.J. 13 (when addressing command influence issues, the military judge’s duty is to allocate the burdens between the prosecution and the defense; in discharging his duty of allocating the burden, the military judge engages in a two-stage process to permit the parties to establish the factual predicate related to any issues of unlawful command influence; the military judge initially requires the defense to carry the burden of raising an unlawful command influence issue; this threshold showing must be more than mere command influence in the air or speculation; but because of the congressional prohibition against unlawful command influence and its invidious impact on the public perception of a fair trial, this threshold is low; the test is some evidence of facts which, if true, constitute unlawful command influence, and 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; if the military judge concludes that the defense has raised the issue of unlawful command influence, the burden shifts to the government to show either that there was no unlawful command influence or that the unlawful command influence did not affect the proceedings).  

(once the defense carries the burden of raising an unlawful command influence issue, the government must prove beyond a reasonable doubt:  (1) that the predicate facts do not exist; or (2) that the facts do not constitute unlawful command influence; or (3) that the unlawful command influence will not prejudice the proceedings or did not affect the findings and sentence).  

(the law of unlawful command influence establishes a low threshold for the defense to present some evidence of unlawful command influence).

United States v. Lewis, 63 M.J. 405 (as a general matter, the defense has the initial burden of raising the issue of unlawful command influence; at trial, the defense meets its burden by showing facts which, if true, constitute unlawful command influence, and 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). 

(once the issue of unlawful command influence has been raised, the burden shifts to the government to demonstrate beyond a reasonable doubt either that there was no unlawful command influence or that the proceedings were untainted; this burden is high because command influence tends to deprive servicemembers of their constitutional rights).

2004

United States v. Gore, 60 MJ 178 (once the issue of unlawful command influence is raised, the Government must prove beyond a reasonable doubt: (1) that the predicate facts do not exist; or (2) that the facts do not constitute unlawful command influence; or (3) that the unlawful command influence will not prejudice the proceedings or did not affect the findings and sentence).

2003

United States v. Dugan, 58 MJ 253 (at trial and on appeal, the defense has the initial burden of producing sufficient evidence to raise unlawful command influence; the burden of proof is low, but more than mere allegation or speculation; the quantum of evidence required to raise unlawful command influence is some evidence; at trial, the accused must show facts which, if true, constitute unlawful command influence, and 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; on appeal, an appellant must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the cause of the unfairness).

(where appellant has successfully raised the issue of unlawful command influence and a DuBay hearing is necessary to determine whether unlawful command influence existed during the sentencing phase of appellant’s court-martial, it is the Government that must now rebut the presumption of unlawful command influence (1) by disproving the predicate facts on which the allegation of unlawful command influence is based; (2) by persuading the DuBay judge that the facts do not constitute unlawful command influence; or (3) by persuading the DuBay judge that the unlawful command influence had no prejudicial impact on the court-martial; whichever tactic the Government chooses, the quantum of evidence required is proof beyond a reasonable doubt).

United States v. Simpson, 58 MJ 368 (our cases provide a specific procedure for use at trial to address allegations of actual unlawful command influence; first, the defense must show facts which, if true, constitute unlawful command influence; second, the defense must 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; the threshold for raising the issue at trial is low, but it is more than mere allegation or speculation; the defense is required to present some evidence of unlawful command influence; third, if the defense has made the requisite showing under the first two steps, the burden shifts to the Government to: (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; whichever tactic the Government chooses, the quantum of proof is beyond a reasonable doubt).
 
(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; such actions might include transfer of responsibility for disposition of charges to commanders not subject to the influence, orders protecting servicemembers from retaliation, changes in venue, liberal grants of challenges for cause, and the use of discovery and pretrial hearings to delineate the scope and impact of alleged unlawful command influence).

(for appellate consideration of command influence, the defense must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the cause of the unfairness; in the course of addressing these issues, appellate courts must consider apparent as well as actual unlawful command influence).

(where the vast majority of the comments made by the senior military and civilian officials were not particularly remarkable and where the overall tenor of statements made by senior officials did not constitute an express or implied command position on disposition or adjudication, appellant failed to meet his burden of demonstrating that the general tenor of the leadership’s interaction with the media demonstrated either the intent to improperly influence the court-martial process or the appearance of such an influence; to the extent that appellant relies upon specific comments in the media by persons outside the chain of command, including Members of Congress, appellant failed to show that the personnel involved in the disposition of charges or on the court-martial panel were aware of such comments or that such comments could reasonably be perceived as carrying the force of command influence).

(where the record of trial indicates that the persons involved in appellant's case understood that the military leadership's discussion in command publications and instructional programs of a "zero tolerance" policy on sexual harassment stood for the proposition that allegations of sexual harassment should not be ignored, but did not require a particular disposition, appellant failed to demonstrate that the phrase "zero tolerance" raised the issue of unlawful command influence; moreover, assuming that appellant met his burden, the testimony of the forwarding and referring authorities, as well as responses of the panel members on voir dire, demonstrated beyond a reasonable doubt that appellant’s trial was not prejudiced by references to the Army’s "zero tolerance" policy under the particular circumstances of this case).

(where the testimony of the officers involved in the disposition decision and the answers of the panel members during voir dire demonstrated that the persons responsible for prosecutorial discretion and adjudication in appellant’s court-martial were either completely unaware of the use by senior military and civilian leadership of phrases such as "no leniency" and "severe punishment" and of conclusions that there had been an "abuse of power" and there was "no such thing as consensual sex between drill sergeants and trainees," or had only a vague recollection of such comments by the senior leadership, where none of these statements were transmitted directly to persons involved in the court-martial process, nor were they communicated through command channels, and where the phrases at issue were not otherwise repeated or disseminated in a manner so direct or pervasive as to undermine the reasonableness of the assertions by persons involved in appellant’s court-martial either that they were not aware of such comments or that they did not regard the media reports as reflecting command policy, the Government demonstrated beyond a reasonable doubt that the few media stories in which these phrases appeared did not taint appellant’s court-martial with unlawful command influence).

(in light of the following circumstances, the Government adequately demonstrated that appellant’s trial was not tainted by the appearance of unlawful command influence: (1) the early action to transfer appellant to another jurisdiction in light of the potentially improper statements by the unit's commander; (2) the decision to compose the court-martial panel from persons outside the unit; (3) the order of the military judge shielding members from media stories about the investigation; (4) the wide variety of disposition decisions in related cases growing out of the investigation at the base, including dismissal of charges, nonjudicial punishment, administrative discharge, and referral to special as well as general courts-martial; (5) the extensive ventilation of the unlawful command influence allegations at trial through testimony, documentary evidence, briefs, arguments of counsel, and a detailed written decision by the military judge, all of which focused on the impact on subordinate commanders and panel members; and (6) the fact that the defense did not seek a change of venue due to the pretrial publicity or unlawful command influence, nor did the defense challenge any of the panel members on the basis of potential exposure to pretrial publicity or unlawful command influence).

2002

United States v. Stoneman, 57 MJ 35 (there is an established analytical framework for resolving claims of unlawful command influence: (1) at trial, the initial burden is on the defense to "raise" the issue by "some evidence", i.e., facts that, if true, constitute unlawful command influence, and the defense must show that the unlawful command influence has a logical connection to the court-martial in terms of potential to cause unfairness in the proceedings; (2) once the issue is raised, the burden shifts to the Government to show either that there was no unlawful command influence or that any unlawful command influence did not taint the proceedings).

(if the Government elects to show that there was no unlawful command influence, it may do so either by disproving the predicate facts on which the allegation of unlawful command influence is based, or by persuading the military judge that the facts do not constitute unlawful command influence; if Government chooses to not disprove the existence of unlawful command influence, it must prove that the unlawful command influence will not affect the proceedings - whichever tactic the Government chooses, the quantum of evidence required is proof beyond a reasonable doubt).

(the quantum of proof required under RCM 912(f)(3) to support a causal challenge is higher than the "some evidence" required to raise an issue of unlawful command influence; thus, a military judge’s determination that the defense has not sustained the greater burden of establishing a challenge under RCM 912(f)(3) does not answer the question whether the defense has met the lesser burden of presenting "some evidence" of unlawful command influence, thereby shifting the burden to the Government).

2001

United States v. Baldwin, 54 MJ 308 (the quantum of evidence necessary to raise unlawful command influence is the same as that required to submit a factual issue to the trier of fact; it must, however, be more than mere speculation).

(in the absence of evidence to the contrary, appellant’s allegations were sufficient to raise a post-trial issue of unlawful command influence where:  (1)  appellant’s post-trial statement was based on her own observations; (2) the post-trial statement was detailed in nature; and (3) the record of trial, containing an unexplained delay at a specific point in time, could be viewed as tending to corroborate an allegation that there was a command meeting at that time).

2000

United States v. Johnson, 54 MJ 32 (the initial burden of raising evidence of command influence is on the defense; proof of command influence in the air will not suffice).

(once raised by evidence, the appearance or existence of unlawful command influence creates a rebuttable presumption of prejudice).

United States v. Ayers, 54 MJ 85 (when asserting unlawful command influence, the initial burden is on the defense to show facts which, if true, constitute unlawful command influence; at trial, the defense must 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).

(when asserting unlawful command influence, the initial burden is on the defense to show facts which, if true, constitute unlawful command influence; on appeal, the defense must show that the proceedings appeared to be unfair and that the unlawful command influence was the cause of the appearance of unfairness).

(the quantum of evidence required to raise the issue of unlawful command influence is some evidence; more than mere allegation or speculation).

1999

United States v. Biagase, 50 MJ 143 (the defense has the initial burden of raising unlawful command influence at trial by showing facts which, if true, constitute unlawful command influence, and 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), and on appeal by presenting some evidence showing:  (1) facts which, if true, constitute unlawful command influence; (2) that the proceedings were unfair; and (3) that the unlawful command influence was the cause of the unfairness)

(once unlawful command influence is raised, either at trial or on appeal, the burden shifts to the government to show, beyond a reasonable doubt, either that there was no unlawful command influence or that the unlawful command influence will not affect the proceedings, and the government may meet that burden by:  (1) disproving the predicate facts upon which the allegation of unlawful command influence is based; (2) persuading the military judge or appellate court that the facts do not constitute unlawful command influence; (3) producing, at trial, evidence proving that the unlawful command influence will not affect the proceedings; or (4) by persuading an appellate court on appeal that the unlawful command influence had no prejudicial impact on the court-martial).