2018 (October Term)
United States v. Gleason, 78 M.J. 473 (the President’s explanation of the listed offense of obstructing justice under Article 134, UCMJ, includes obstructing justice by means of intimidation or force or threat of force delaying or preventing communication of information relating to a violation of a criminal statute of the United States to a person authorized by a department, agency, or armed force of the United States to conduct or engage in investigations or prosecutions of such offenses; in this case, the circumstances are that appellant assaulted and pointed a gun at his victim and took her phone moments before she tried to place an emergency call to the police; the nature of the acts leading to appellant taking the victim’s phone and telling her she was not going to be calling anyone suggests appellant was by intimidation and by force or the threat of force delaying or preventing communication of information to police relating to an assault; this conduct falls squarely within the President’s explanation of the obstruction of justice offense; furthermore, by using a novel specification, the government relieved itself of having to prove the second and third elements of obstructing justice, and in doing so, the government in effect improperly reduced its burden of proof; such an outcome illustrates the reason for the policy preventing offenses listed under Article 134, UCMJ, from being charged as novel offenses and cannot be countenanced).
(the President’s explanation of the listed offense of obstructing justice under Article 134, UCMJ, includes obstructing justice by means of intimidation or force or threat of force delaying or preventing communication of information relating to a violation of a criminal statute of the United States to a person authorized by a department, agency, or armed force of the United States to conduct or engage in investigations or prosecutions of such offenses; in this case, the circumstances are that appellant assaulted and pointed a gun at his victim and took her phone moments before she tried to place an emergency call to the police; the nature of the acts leading to appellant taking the victim’s phone and telling her she was not going to be calling anyone suggests appellant was by intimidation and by force or the threat of force delaying or preventing communication of information to police relating to an assault; this conduct falls squarely within the President’s explanation of the obstruction of justice offense; furthermore, by using a novel specification, the government relieved itself of having to prove the second and third elements of obstructing justice, and in doing so, the government in effect improperly reduced its burden of proof; such an outcome illustrates the reason for the policy preventing offenses listed under Article 134, UCMJ, from being charged as novel offenses and cannot be countenanced).
(a novel specification in violation of Article 134, UCMJ, that charged appellant with interfering with his victim’s emergency call to the police after appellant assaulted and pointed a gun at her and took her phone, failed to state an offense because the offense was already listed inside Article 134’s framework as the offense of obstructing justice and was therefore barred by MCM, pt. IV, para. 60.c.(6)(c), which provides that the government may not charge a novel Article 134, UCMJ, offense if the offense is otherwise listed as an Article 134, UCMJ, offense).
2016 (October Term)
United States v. Reese, 76 M.J. 297 (a novel Article 134, UCMJ, offense charged by the government that was intended to charge the listed Article 134, UCMJ, offense of obstructing justice but relieved the government of having to prove two elements of obstructing justice and thereby reduced the government’s burden of proof, was barred by part IV, para. 60.c.(6)(c), of the MCM, a provision that prohibits the government from using a novel specification to allege an Article 134 offense that is already listed inside the article’s framework, and it therefore failed to state an offense).
2011 (September Term)
United States v. Ali, 71 M.J. 256 (the erroneous failure to reference the terminal elements of clauses 1 or 2 of Article 134, UCMJ, prejudice to good order or discipline or service discrediting conduct, in the specification alleging obstruction of justice did not materially prejudice appellant’s substantial rights, where he pleaded guilty to the offense in accordance with a pretrial agreement, the military judge explained the elements of prejudice to good order and discipline and service discrediting conduct to him during the providence inquiry, and he admitted during this inquiry that his conduct was prejudicial to good order and discipline).
United States v. Rose, 71 M.J. 138 (a specification alleging obstruction of justice as a violation of Article 134, UCMJ, but failing to allege the terminal element of that offense, was erroneous but not prejudicial to the accused’s substantial rights, where during the guilty plea colloquy, the military judge listed and defined clauses 1 and 2 of the terminal element for the accused, and the accused described his actions and explained why his conduct was service discrediting and prejudicial to good order and discipline; thus, the record unambiguously reflects that the accused knew under what clauses he was pleading guilty and clearly understood the nature of the prohibited conduct as being in violation of clauses 1 and 2 of Article 134).
2008 (September Term)
United
States v. Ashby, 68 M.J. 108 (evidence that
appellant had reason to believe
there would be a criminal proceeding pending against him when he
removed a
videotape of his flight after the aircraft he piloted severed the cable
supporting a gondola, causing the deaths of 20 passengers, and during
the time
appellant secreted the tape in his quarters until his co-accused
destroyed the
tape after learning that they were under criminal investigation by
Italian
authorities, was sufficient evidence to establish the elements of
obstruction
of justice, as that offense was incorporated into a charge of conduct
unbecoming an officer).
(one of the elements of
obstruction of justice
under Article 134, UCMJ, is that appellant knew or had reason to know
that
there would be “criminal proceedings” pending; although the MCM does
not define
“criminal proceedings,” in this case, nothing supports appellant’s
contention
that his conduct cannot be sustained as conduct unbecoming an officer
because
the criminal investigation that was impeded was foreign rather than
domestic or
military).
United
States v. Reeves, 61 M.J. 108 (the administration of justice is not
criminally obstructed by a witness exercising that witness’s
constitutional
privilege against self-incrimination and the right to counsel).
(without more, a person’s advice to another to invoke certain rights,
where the
advice given is honest and uncorrupt, should not as a matter of law
sustain a
conviction to obstruction of justice; however, that does not mean, as a
matter
of law, that reference to advice as constitutional, precludes
consideration as
to whether that advice was indeed constitutional in nature, uncorrupt,
and thus
protected conduct for the purposes of obstruction under Article
134).
(whether an accused’s conduct was wrongful and thus constituted
obstruction of
justice will turn on contextual factors presenting questions of fact
for the
members, including, among other things, the actor’s tone and manner of
delivery; in those instances where the advice given is honest,
uncorrupt, and
disinterested, we agree that giving such advice is not wrongful; but
one who
advises, with a corrupt motive, that a witness exercise a
constitutional right
or privilege may obstruct the administration of justice; the lawful
behavior of
the person invoking the right cannot be used to protect the criminal
behavior
of the inducer; and this is the analytic approach taken by a majority
of the
federal circuits).
(as a matter of law, and under the circumstances of this case, an
accused may
be convicted of obstruction of justice by telling another not to speak
to
investigators and to seek counsel; the facts indicate that appellant
was not a
disinterested party; she was aware of the investigation into her
conduct and
that the person she advised to exercise her rights was a potential
witness in
that investigation; the nature and manner of her advice took her
statements to
the potential witness outside the zone of constitutional protection).
(a wrongful act is one done without legal justification or with some
sinister
purpose; advising a witness to exercise certain constitutional rights
and
privileges may be wrongful if accompanied by a corrupt motive to
influence,
impede, or otherwise obstruct the due administration of justice).
(where
the
record indicates that shortly after being apprised she was under
investigation
for her conduct with another servicemember, appellant began frequently
calling
that servicemember at her workplace and home to advise her not to talk
to a defense
counsel or to law enforcement personnel, a rational trier of fact might
have
found beyond a reasonable doubt that appellant’s statements were
wrongful and
indicative of an intent to dissuade the servicemember from cooperating
with the
recently initiated investigation; even if one accepts for the sake of
argument
that telling a witness not to speak to investigators is tantamount to
advising
a witness of that witness’s right to silence, the tone, frequency, and
background of appellant’s calls raised legitimate questions of fact for
the
members regarding the wrongfulness and intent of the calls).
2002