IN THE
CASE OF
UNITED
STATES, Appellee
v.
Rico
S.
GORE, Equipment Operator Constructionman
No.
03-6003
Crim. App. No.
200300348
Argued
Decided
GIERKE,
J., delivered the opinion of the Court, in which CRAWFORD, C.J.,
EFFRON, BAKER,
and ERDMANN, JJ., joined.
Counsel
For
Appellant: Lieutenant Colin A. Kisor,
JAGC, USNR (argued); Lieutenant Marcus N. Fulton, JAGC, USN (on
brief).
For Appellee: Major
Raymond E. Beal, II, USMC
(argued); Commander R. P. Taishoff,
JAGC, USN
(on brief); Lieutenant Frank L. Gatto,
JAGC,
USN.
Military
Judge: John A. Maksym
This opinion is subject to editorial
correction before final publication.
Judge
GIERKE delivered the opinion of the Court.
Article
37(a) Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §
837(a)
(2000), prohibits unlawful command influence by all persons subject to
the
UCMJ. Unlawful command influence is
recognized as “the mortal enemy of military justice.”
The
granted issues are:
I.
WHETHER, HAVING FOUND UNLAWFUL COMMAND
INFLUENCE, THE MILITARY JUDGE ABUSED HIS DISCRETION IN DISMISSING THE
CASE WITH
PREJUDICE.
II.
WHETHER THE LOWER COURT ERRED BY ENGAGING
IN IMPERMISSIBLE FACT-FINDING WHEN RULING ON THE GOVERNMENT’S APPEAL
PURSUANT
TO ARTICLE 62, UCMJ, 10 U.S.C. § 862 (2000).
For
the reasons set out below, we reverse the decision of the Court of
Criminal
Appeals (CCA).
I. PROCEDURAL POSTURE OF THE CASE
Appellant,
an Equipment Operator Constructionman, was
On
September 19, Appellant was arraigned, but the court recessed until
November. Before the trial resumed,
Appellant and the convening authority (CA) entered into a pretrial
agreement. In preparation for the
anticipated sentencing phase of the court-martial, trial defense
counsel
attempted to obtain character witnesses from Appellant’s unit but was
thwarted
by unlawful command influence by the CA.
On November 21 at an Article 39(a), UCMJ, 10 U.S.C. §
839(a)(2000)
session, defense counsel moved for dismissal of the charges due to
unlawful
command influence, and the military judge granted the motion to dismiss
with
prejudice.
Pursuant
to Article 62, UCMJ, 10 U.S.C. § 862 (2000), the Government appealed to
the
CCA. Initially, the CCA remanded the
case to the military judge with instructions to “prepare detailed and
complete
findings of fact and conclusions of law concerning his decision to
dismiss this
case with prejudice[.]”
United States v. Gore,
NMCM No. 200202409, slip op. at 2 (N-M.
Upon
further review, the CCA agreed with the military judge that there was
unlawful
command influence, but concluded that the military judge abused his
discretion
in fashioning a remedy. The lower court
issued an opinion ordering that the case be remanded to the military
judge to
“select an appropriate remedy, short of dismissal of the charges.”
Facts Relating to Unlawful Command
Influence
The
relevant events were presented through the testimony of the witnesses
during the
evidentiary hearing on the motion to dismiss.
As previously noted, Appellant’s
unit was
located at
Anticipating
Appellant’s guilty plea pursuant to the signed pretrial agreement,
defense
counsel worked to prepare a sentencing case for Appellant.
On November 18, three days before the trial
was scheduled to resume, Lieutenant Maye
went to
Appellant’s unit to obtain possible defense witnesses.
Lieutenant Maye
testified that he wanted to identify individuals who would fill out
questionnaires detailing support of Appellant.
Lieutenant Maye sought out
Equipment Operator
Chief E-7 (Chief) Metheny in particular,
as Appellant “wanted Chief Metheny to
assist in our defense.”
Lieutenant
Maye testified that he did not believe that
he needed
authority from the commanding officer to seek out defense witnesses
from
members of the command. He testified
that his
When
Lieutenant Maye could not locate Chief Metheny, he left but returned the next day and
made contact
with him. Lieutenant Maye testified that they proceeded to Chief Metheny’s office where defense counsel gave him
six
character witness questionnaires and Chief Metheny
“immediately
said, ‘Well, I’ll testify. Do you need
me to testify? I’ll testify.’” Accepting this offer, they
discussed travel
plans for the Chief to be a witness at the court-martial and the
general
substance of Chief Metheny’s expected
testimony on behalf
of Appellant. Lieutenant Maye testified that Chief Metheny
told him that “he thought [Appellant] was a really nice guy. And he said he thinks that [Appellant] should
be retained.”
Lieutenant
Maye also testified that Chief Metheny
agreed to distribute questionnaires to other senior enlisted personnel
that he
believed would also testify in support of Appellant. Chief Metheny
stated that others in the command felt the same way about Appellant. Chief Metheny
agreed with Lieutenant Maye that Chief
Smith would
say some positive things about Appellant.
Chief Metheny also specifically
identified two
other persons who would fill out questionnaires and also provide
positive
information. At the end of the
conversation, Chief Metheny told defense
counsel,
“Come back tomorrow and I’ll have the . . . character witness
questionnaires
for you.” Lieutenant Maye
testified that they concluded the conversation with Chief Metheny
stating, “In the meantime, I’ll go talk to my CO, my skipper.” Immediately after this conversation Chief Metheny contacted and briefed his commanding
officer,
Commander Morton, about testifying.
On
the afternoon of November 20, the day before trial, defense counsel
returned to
Appellant’s command because he “was surprised that Chief Metheny
hadn’t contacted me, hadn’t come over and dropped off the
questionnaires.” Lieutenant Maye
testified that as he walked onto the command quarterdeck, Chief Metheny met him and informed him, “I can’t help
you,
Lieutenant . . . I’m not testifying . .
. . My skipper said no way. He said that
I can’t help Constructionman Gore.” Also Chief Metheny
refused to testify telephonically. When
asked about the questionnaires, defense counsel testified that Chief Metheny said, “Lieutenant, my CO said we cannot
help Constructionman Gore.
End of story.” As the two parted,
Chief Metheny yelled out, “Hey Lieutenant,
this is
between me and you.”
Lieutenant
Maye left the command but shortly returned,
accompanied by his officer-in-charge, Lieutenant Weber.
Lieutenant Maye
sought to arrange a second meeting with Chief Metheny
and to have Chief Metheny repeat his
statements in
the presence of Lieutenant Weber.
Defense counsel and Lieutenant Weber discussed with Chief Metheny his basis for refusing to testify. Chief Metheny
stated that neither he, nor anyone else in his command, would testify
on behalf
of Appellant in light of the order by the commanding officer, Commander
Morton. Chief Metheny
“alluded to negative ramifications that would stem from testifying and
terminated the meeting . . . .” He
reinforced this point when he grabbed his collar device and stated that
he
attained his present grade of chief in 11 years when he was expected to
make it
in 16 years and that one gets ahead by not bucking the system. Lieutenant Maye’s
further contacts with Appellant’s command resulted in his being
informed that
Chief Metheny would be in
Based
on these developments, on the evening of November 20 trial defense
counsel
prepared a Motion to Dismiss due to unlawful command influence and
informed
trial counsel of this issue. Having
traveled to
However,
as Chief Metheny was also present in
In
light of these statements by Chief Metheny,
in the
late morning of November 21, defense counsel filed the motion with the
court-martial. In the afternoon of November 21, the court-martial
reconvened to
litigate the defense motion to dismiss on the basis of unlawful command
influence.
Since
original detailed defense counsel, Lieutenant Maye, was now a witness
for Appellant, substitute defense counsel argued the motion at the
special
court-martial. Initially Lieutenant Maye provided all of the previously detailed
testimony as
to his prior contacts with Chief Metheny
both at the
command in
Following
the testimony of the original defense counsel, the defense called Chief
Metheny as a witness.
He testified that he had minimum contact with the Appellant who
served
in his platoon for less than two weeks prior to his alleged
unauthorized
absence. Chief Metheny
disclosed that he also had been the command representative for a brig
visit
with Appellant earlier in November but otherwise denied personally
knowing
Appellant.
Immediately
thereafter, Chief Metheny denied telling
Lieutenant Maye that he would be willing
to testify at the
court-marital as a character witness on behalf of Appellant. He also denied volunteering to testify on
behalf of Appellant. Chief Metheny stated his personal view that he had
seen a lot
worse stay in the Navy, but he reaffirmed that he had nothing positive
to say
as a professional opinion about Appellant.
Chief Metheny did confirm that he
agreed to
distribute the defense questionnaires to others in the command who may be able to fill them out, but explained
that he
“hadn’t gotten around to it . . . .”
Chief Metheny could not recall
Lieutenant Maye asking him about
testifying electronically. Also, Chief Metheny
denied discussing with Lieutenant Maye and
Lieutenant
Weber the prospect of appearing as a defense witness at the trial. He denied any knowledge even of being a
witness, but explained his presence at the court-martial as a possible
command
representative.
At
this point, Chief Metheny testified as to
his
conversations with his commanding officer.
He explained that when he met with him, the commanding officer
told him
that his presence was not required at the court-martial.
Chief Metheny
testified that the commanding officer viewed the trial as a “done deal”
and
that the result “was already predetermined.”
Chief Metheny denied that the
commanding
officer “had said that no one should help [Appellant].”
Chief
Metheny also disclosed that he had a chance
meeting
with the commanding officer at the command the day before the trial, in
which
the commanding officer expressed concerns “about the inappropriateness
of the
Lieutenant [Maye] coming into the command
and not
checking in with the [executive officer].”
The commanding officer stated that he wanted Chief Metheny
to attend the court-martial.
Regarding
his conversation with Lieutenant Maye the
morning of
trial, Chief Metheny made repeated denials
that
contradicted the testimony of Lieutenant Maye. Chief Metheny
denied that he had said the commanding officer had told him to “to[e]
the line”
or that he had stated that if he testified for Appellant he would never
make
senior chief. He also denied telling
Lieutenant Maye that the commanding
officer had
called him to discuss the case. He
denied telling Lieutenant Maye that he was
going to
say what the command wanted him to say.
Finally, he denied that the commanding officer in any way tried
to
affect his testimony, told him not to testify on behalf of Appellant,
or told
him not to help Appellant.
Next,
Lieutenant Weber testified as a defense witness. Lieutenant Weber
testified
that he sat in on the second meeting with Lieutenant Maye
and Chief Metheny, and that they discussed
whether
Chief Metheny was going to be a witness
for Appellant
during sentencing. He corroborated the
testimony of Lieutenant Maye.
He testified that Chief Metheny
expressed hesitation about testifying as a defense character witness
for
Appellant because of his concern about “his status in the command . . .
[and]
his promotion.” He stated that “the CO
told [Chief Metheny] that he [Chief Metheny] was not going to testify.”
Lieutenant Weber also testified that Chief Metheny
stated that the commanding officer said that
“nobody from the command was going to either testify or fill out any of
the
client witness questionnaires.”
Lieutenant Weber stated that his understanding of the
conversation
between Chief Metheny and his commanding
officer was
that Chief Metheny “said, ‘Hey I’m going
to testify.
I’m going to be in
Lieutenant
Weber stated that he was “in shock basically as to what was going on.” Lieutenant Weber testified, “And I said,
‘Chief, are you serious? Is this going
to have a consequence on your - your promotion?’ And
his response to me was, ‘How long have
you been in the Navy?’” Lieutenant
Weber explained that Chief Metheny “also
showed me
his collar device and said, ‘I received this in 11 years.
It takes usually people in my rate 16
years. I got this by sitting back and
watching how things work.’ And he said that he’s seen a lot of people
try to do
the right thing and get burned by it.”
After
the testimony of these three witnesses, the defense rested. The military judge at this point stated, “As
a matter of law, the court finds that the defense has more, by a rather
exceeding level, met its burden under
Contrary
to Lieutenant Weber’s testimony, Commander Morton, testified that he
did not
try to influence Chief Metheny’s testimony. He testified that he “was taken aback by
[defense counsel] coming in my spaces, approaching one of my Chiefs
without my
knowledge, and asking them or ordering them to come to
Commander
Morton stated, “I was really offended I guess, above all else, that
somebody
could come in and take one of my people away without my knowledge. So I told the Chief, ‘You’re not going to
go.’” Commander Morton explained that
the conversation with Chief Metheny arose
because the
Chief was advising him that he would be absent from work.
Commander Morton testified that his was an
“operational unit, ready to deploy” and he and other command members
were
missing “a very important meeting with our superior discussing our
combat
readiness to be here.” He explained that
it “bothered” him that the “request directing to my subordinate . . .
was made
without any knowledge of the impact to my command.”
Commander
Morton testified that he was confused and unaware that Appellant would
need to
have witnesses speak on his behalf at sentencing. He
explained that “nobody had made me aware
of a need to have anybody speak on [Appellant’s] behalf.”
He testified that he had briefly discussed
with Chief Metheny the facts of
Appellant’s offenses
and the terms of the pretrial agreement.
He testified that he told Chief Metheny
the
case was a “done deal.” Commander Morton
explained that he had “never been in this position to see what a
special court
actually does. And I thought it was a
foregone conclusion that once the [pretrial] agreement was signed [that
the
case was settled.]”
Commander
Morton denied that he had any motivation to prevent Appellant from
getting
witnesses to speak on his behalf. He
asserted that he did not understand that Chief Metheny
was going to be a defense witness because he asserted Chief Metheny
barely knew Appellant and he did not see how Chief Metheny’s
testimony was germane.
Additionally,
he testified that he did not tell anyone in his command that they could
not
help Appellant. Commander Morton
asserted that he had not done anything to convey the impression to
members of
his command that their careers would be affected in any manner if they
did or
did not testify for the Appellant. He
expressly denied that he tried to influence Chief Metheny’s
testimony against Appellant or that he told Chief Metheny
that he must “to[e] the company line.”
He then explained, “Chief Metheny
is one to
really talk on. He is a Seabee’s
Seabee. He will do anything for any
troop, anytime. I know he can talk and
talk. I said, ‘Stick to the facts, the
facts that you know.’ That’s all I told
him.”
Commander
Morton stated that he had no ill will toward the Appellant. He denied any knowledge of any questionnaires
that were being passed around his command.
Finally, he denied that he did anything to influence the
court-martial
proceedings.
Commander
Morton explained that he reconsidered his decision not to permit Chief Metheny to testify when he got a telephone call
from the legalman chief, in the base staff
judge advocate’s office,
informing him “that the defense counsel had claimed some - some foul
play on my
part, that I was limiting Chief Metheny’s
ability to get there.” Commander Morton
said that he met with the chief and told him to “go down to
The
contradictory testimony of the witnesses presented a credibility issue
for the
military judge. His detailed findings
explain his reasons for believing the original defense counsel and
Lieutenant
Weber and for not believing Chief Metheny
and the
CA. 58 M.J. 778-84. The military judge found that, “the command
acted in a manner which would constitute unlawful command influence”
and
dismissed the case with prejudice, stating, “The carcinoma that is
undue
command influence must be cut out and radically disposed of.”
The
judge reasoned that the CA improperly “controlled” a prospective
defense
sentencing witness. This resulted in
changing the witness’s anticipated testimony that Appellant should be
retained
into testimony that only supported the command decision to
court-martial Appellant. In fashioning a
remedy of dismissal with
prejudice, the military judge stated that “the evil here spreads far
beyond the
four corners of this case . . . .”
In
announcing his findings, the military judge stated:
The
mandate of
. . . .
This court was amazed at the absence of
knowledge that the convening authority held with regard to issues
having to do
with trials by court-martial. And the
court’s confidence in the ability of this officer to convene another
court is
shaken to the very core. That this
officer would so lack-hazardly [sic] and in
such a
sloppy manner dismiss the importance of a federal court proceeding
pertinent to
one of his own subordinates is no less appalling.
The
CCA concluded, upon reviewing the additional findings and conclusions
that the
military judge made, pursuant to its direction, that the CA’s unlawful
command
influence only affected the sentence hearing, and therefore that the
military
judge had abused his discretion. The
lower court ordered that Appellant’s case be sent back to the military
judge to
“select an appropriate remedy, short of dismissal of the charges,
commensurate
with the degree and extent of the unlawful command influence.” 58 M.J. at 788.
Appellant
then petitioned this Court for review of the lower court decision and
that
petition was granted. Appellant asserts
that, regarding Issue I, the military judge acted within the limits of
his
discretion. Regarding Issue II,
Appellant contends the lower court exceeded their permissible scope of
review
by making additional findings of fact.
The Government argues that the military judge abused his
discretion in
dismissing the charges with prejudice and that the lower court did not
engage
in impermissible fact-finding but instead made logical inferences and
conclusions.
II. DISCUSSION
A. The Factual Basis for the Decision
A
preliminary issue before this Court is determining the decisional facts
in this
case. This requires little discussion as
the law controlling this issue is clear and unequivocal.
Article 62(b), UCMJ, 10 U.S.C. § 862(b)
(2000) states that the lower court in ruling on a government appeal
“may act
only with respect to matters of law, notwithstanding section 866(c) of
this
title (article 66(c)).” See Rule
for Courts-Martial 908(c)(2).
This Court has stated:
When
a court is limited to reviewing
matters of law, the question is not whether a reviewing court might
disagree
with the trial court's findings, but whether those findings are "fairly
supported by the record." Marshall
v. Lonberger, 459
On
matters of fact with respect to this Government appeal under Article
62, UCMJ, both
this Court and the lower court are in the same position--bound by the
military
judge's factual determinations unless they are unsupported by the
record or
clearly erroneous. Neither court has
authority to find facts in addition to those found by the military
judge. While the lower court did comment
and even
expressed some disagreement with some of the findings of the trial
judge, the
lower court did not find any factual finding of the military judge
clearly erroneous. Moreover, we conclude
that each of the
findings of fact of the military judge are supported by evidence of
record and
proceed to decide this case relying entirely on the findings of fact
made by
the trial judge. In light of these matters and our disposition of
Granted Issue
I, we need not specifically determine whether the lower court found
additional
facts as suggested by Issue II.
B. The Military Judge’s Remedy for
the Unlawful Command
Influence
Unlawful
command influence is prohibited under Article 37(a), UCMJ, 10 U.S.C. §
837(a)
(2000), which states,
No authority convening a general, special,
or summary court-martial, nor any other commanding officer, may
censure,
reprimand, or admonish the court or any member, military judge, or
counsel
thereof, 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. No person subject to
this chapter may attempt 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. . . .
The
importance of this prohibition is reflected in our observation,
that “a prime motivation for establishing a civilian Court of
Military
Appeals was to erect a further bulwark against impermissible command
influence.”
We
need not here revisit the “multitude of situations in which superiors
have
unlawfully controlled the actions of subordinate in the exercise of
their
duties under the UCMJ.”
Addressing
the undisputed unlawful command influence in this case, it is important
to note
that we have repeatedly condemned unlawful command influence directed
against
prospective witnesses. See
Biagase, sets forth the analytical
framework for deciding issues involving unlawful command influence. In Biagase,
this Court held:
[O]nce 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.
50 M.J. at 151.
In
Biagase, we reaffirmed, what we
first stated
in United States v. Rivers, 49 M.J. 434, 443
(C.A.A.F. 1998), that the
military judge is the “‘last sentinel’ to protect the court-martial
from
unlawful command influence.”
United
States v. Stoneman, 57 M.J. 35, 42
(C.A.A.F. 2002)(quoting Rosser, 6
M.J. at 271).
But
these cases do not require that the military judge take any specific
action to
purge the taint of unlawful command influence.
Simply stated, our prior cases have addressed only what a
military judge
can do, not what the military judge must do, to cure (dissipate the
taint of
the unlawful command influence) or to remedy the unlawful command
influence if
the military judge determines it cannot be cured. This
distinction has an important impact as
to the standard of review in the analysis of a command influence issue.
Biagase
and Rivers are illustrative of situations where the military
judge took
corrective action and concluded it successfully purged the taint of
unlawful
command influence thereby permitting the trial to proceed.
This Court reviewed the military judge’s
attempt to purge the taint de novo. See
Biagase, 50 M.J. at 151; Rivers,
49 M.J. 443. Our
task
on appeal was also to determine beyond a reasonable doubt if the
military judge
was successful in purging any residual taint from the unlawful command
influence. Biagase,
50 M.J. at 151.
Because command influence is pernicious and an anathema to the
fairness
of military justice, our de novo review ensured that the unlawful
command
influence had no prejudicial impact on the court-martial.
Unlike
both Biagase and Rivers,
the present
case does not ask us to consider if the military judge was successful
in
purging the taint from unlawful command influence and permitting the
trial to
proceed. Here, the judge found unlawful
command influence tainted the proceedings.
Neither the lower court nor the Government challenges the
finding that
unlawful command influence tainted the proceedings.
But
again, unlike both Biagase and Rivers,
the military judge here expressly concluded that “the only remedy that
addressed the rabid form of unlawful command influence placed before
the [c]ourt was dismissal with prejudice.” The military judge dismissed the charges with
prejudice to prevent the unlawful command influence from prejudicing
Appellant’s court-martial. As the remedy
of the military judge terminated the proceedings, it is apparent that
he was
successful. So this Court does not
review de novo, as it did in both Biagase
and Rivers,
whether the prejudice to Appellant’s court-martial arising from the
unlawful
command influence persists after the remedy.
Because
the military judge here decided that the command influence could not be
cured
and dismissed the charges with prejudice, we, therefore, address a
different
issue than that presented in Biagase
and Rivers,
where the trial proceeded after remedial action by the military judge. We now consider whether the military judge
erred in fashioning the remedy for the unlawful command influence that
tainted
the proceedings.
We
will review the remedy ordered by the military judge in this case for
an abuse
of discretion, the same standard applied by the lower court and agreed
to by both
the parties before our Court. As we
proceed in this review, we are mindful that as to this sensitive issue,
the
judge’s evaluation of the demeanor of the witnesses is most important. See Stoneman,
57 M.J. at 42-43.
An
abuse of discretion means that “when judicial action is taken in a
discretionary matter, such action cannot be set aside by a reviewing
court
unless it has a definite and firm conviction that the court below
committed a
clear error of judgment in the conclusion it reached upon a weighing of
the
relevant factors.” United States v.
Houser, 36 M.J. 392, 397 (C.M.A. 1993)(citation omitted). We have also stated, “We will reverse for an
abuse of discretion if the military judge’s findings of fact are
clearly
erroneous or if his decision is influenced by an erroneous view of the
law.”
We
have long held that dismissal is a drastic remedy and courts must look
to see
whether alternative remedies are available.
United States v. Cooper, 35 M.J. 417, 422 (C.M.A. 1992); See
also
As
dismissal of charges is permissible when necessary to avoid prejudice
against
the accused and the findings of fact of the military judge documented
the
prejudice to Appellant from the egregious error in this case, we
conclude the
military judge acted within his discretion to dismiss with prejudice
the
charges against Appellant. While such
remedy should only be imposed when necessary, the military judge here
acted
within his discretion after making findings of fact relating to the
CA’s
actions to prevent witnesses from testifying on behalf of, and
cooperating
with, Appellant. We agree with the
military judge when he said that, “[t]he
mandate of [Biagase] could not be
more clear. Undue and unlawful command
influence is the
carcinoma of the military justice system, and when found, must be
surgically
eradicated.”
The
military judge precisely identified the extent and negative impact of
the
unlawful command influence in his findings of fact.
As a result of the commanding officer’s order
not to testify on behalf of Appellant, the military judge found that
Appellant
was deprived of the favorable testimony of Chief Metheny. Testifying before the military judge, Chief Metheny continuously displayed discomfort,
failed to recall
events that occurred no more than 36 hours prior to testifying, and
“left the
[c]ourt with the clear belief that [he] was
terrified
to testify as he might have previously wished.”
The military judge found that, prior to testifying, Chief Metheny “alluded to the negative ramifications
that would
stem from testifying,” and “grasp[ed] his
collar
device and stat[ed] that he had attained his present grade in a shorter
period
than should have been expected.” Chief Metheny also “indicated that one gets ahead by
not bucking
the system.” He noted that “he had to
recognize that the commanding officer authored his fitness report.” Chief Metheny
informed defense counsel “that he had received a phone call from the
commanding
officer the evening prior to date of trial” and that “if he testified
favorably
to the accused he would not be promoted to senior Chief.
He further informed detailed defense counsel
that if he did testify it would be in a manner consistent with the
commands
[sic] wishes.”
The
military judge believed Chief Metheny to
be
testifying falsely when he attempted to minimize the impact of the CA’s
order
for him not to testify on behalf of Appellant.
The judge’s conclusion stemmed from the fact that Chief Metheny originally indicated to defense counsel
that he
would testify on behalf of Appellant.
Specifically, Chief Metheny stated
that he
thought Appellant was a “really nice guy” and should be retained. Chief Metheny
identified Chief Smith as another individual from the command who also
held the
same beliefs as himself. However, when
Chief Metheny was actually called to
testify on
behalf of Appellant, he denied volunteering to testify on behalf of
Appellant,
stated he was not sure why he was there other than perhaps to serve as
a
command representative, that he did not recall being asked to testify
electronically, and that he did not discuss the prospect of appearing
as a
witness with original defense counsel and Lieutenant Weber.
The
military judge rejected Chief Metheny’s
testimony
finding, “His demeanor continued to betray dishonesty, both in the
ashen tone
of his skin, which varied as his testimony continued, and his constant
movement
in the witness box.” Also, “his face
was red and head bowed when answering the question,” he appeared to be
“acutely
uncomfortable,” and “his eyes were averted from the direction of the
Court.” Chief Metheny
appeared to the court as being under “considerable duress.” He was a man desperate to please his
commanding officer. He impressed the
court as a witness “who did not feel free to express his true opinions
or
accurately recount what he knew to be true.”
The Chief, “under rather intense questioning from the Court
finally
conceded that he had been told by the commanding officer that he was
not going
to testify in the case.” The military
judge found that this concession ran “afoul of the Chief’s testimony
that he
did not know that he was desired as a witness.”
He conceded to the court that “he did in fact tell detailed
defense
counsel that it was unwise to buck the system,” which caused the court
to
further question why he testified that he did not believe he would be
called as
a witness.
The
military judge found Lieutenant Weber to be a credible witness that
corroborated the scope, degree, and impact of the unlawful command
influence on
Chief Metheny.
Ultimately, the military judge concluded that “in order to
determine
that no unlawful command influence had been exerted it would have to
defy
logic, disbelieve two officers of the court and adopt the testimony of
Chief Metheny whose erratic, nervous and
deceptive deportment and
questionable substantive contribution are documented in [my] findings
of
fact.”
The
military judge further concluded that the Government failed to prove
that the
unlawful command influence had no impact on the proceedings. The military judge found that the commanding
officer so terrified Chief Metheny that he
refused to
testify contrary to his commander’s orders.
Likewise, the commanding officer prohibited questionnaires from
being
distributed and may have prohibited anyone else in the command from
testifying
for Appellant. The military judge stated
that “[s]ubsequent to the intervention of
the
Commanding Officer, no member of the command was going to testify for
the
accused . . . .” Importantly, the
military judge specifically found that the Government failed to produce
testimony of any alternate defense witnesses from the command.
Rejecting
alternate remedies, the judge reasoned that dismissing without
prejudice and
allowing for a re-referral would not eradicate the unlawful command
influence
because it “would not have removed the pool of prospective witnesses
from the
firm grasp of an interloping commanding officer who, as Chief Metheny noted, writes the fitness reports of
prospective
witnesses.” The military judge also
rejected a “blanket order whereby every witness proposed by the defense
would
have been accredited with a positive opinion of the accused’s
rehabilitative potential for further naval service.”
In fashioning a remedy, the military judge
rejected the Government argument that Chief Metheny’s
“lack of significant contact with the accused somehow vitiates the
unlawful
command influence.” Noting the
“special significance” of the testimony of a Chief petty officer, the
judge
rejected any suggestion that the commanding officer alone could
determine what
testimony was “germane” to the court-martial.
Finally, the military judge stated that “the court also weighed
the
absence of understanding of the military justice system or his role as
a CA on
the part of the commanding officer.
Accordingly, having concluded that [Appellant] could not be
afforded
witnesses untainted by the chilling hand of the convening authority,”
the
military judge determined that Appellant would not receive a fair trial
and the
only available remedy was dismissal with prejudice.
Furthermore,
we note the fact that Appellant previously negotiated a pretrial
agreement does
not in any way undermine the military judge’s conclusion.
Appellant’s negotiation of a pretrial
agreement does not mean that he is not entitled to a fair trial, one
where
witnesses are permitted to testify on behalf of and in support of
Appellant. Appellant had not yet entered
his pleas and
remained free to plead not guilty. We
view the possible future guilty plea of Appellant as irrelevant. The military judge was correct in rejecting
the commanding officer’s view of the case that after the pretrial
agreement was
signed the case was a “done deal.” The
circumstances of Appellant’s negotiated future guilty plea did not
afford the
commanding officer license to violate the mandate of Article 37, UCMJ,
prohibiting unlawful command influence. Cf. Gleason, 43 M.J. at 75 (considering
an offered
and accepted plea of guilty untainted by unlawful command influence).
In
summary, both parties and the lower court agree that the military judge
correctly found that unlawful command influence existed.
The military judge’s findings of fact were
not clearly erroneous and support this conclusion.
The military judge’s conclusion of prejudice
stemming from this unlawful impact in this case is supported by the
record. Because Appellant had not yet
entered pleas, the CA’s interference with potential witnesses affected
both
Appellant’s ability to contest the charges and to present a sentencing
case. It was within the military judge’s
discretion to determine that dismissal with prejudice was the
appropriate remedy
in light of the egregious conduct of the CA that prejudiced Appellant’s
court-martial.
We
hold that the military judge did not abuse his discretion by dismissing
the
charges against Appellant. His findings
of fact were supported by the evidence and his decision to dismiss with
prejudice was within the range of remedies available and not otherwise
a clear
error of judgment. Based on this
holding, we conclude that the lower court erred in ordering the record
to be
returned to the military judge to select a different remedy.
Decision
The
decision of the United States Navy-Marine Corps Court of Criminal
Appeals is
reversed. The decision of the military
judge is reinstated.
*
It should be noted
that the events related to the unlawful command influence occurred in
the month
of November rather than September 2002.