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).
(once an appellant asserts that there was an appearance of unlawful command influence and presents some evidence to support the claim, the burden then shifts to the government to rebut the allegation; specifically, the government bears the burden of proving 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 meets its burden, the appellant’s claim of unlawful command influence will be deemed to be without merit and no further analysis will be conducted; if the government does not meet its burden of rebutting the allegation at this initial stage, then the government may next seek to 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; if the government meets its evidentiary burden at this stage of the analysis, then the appellant merits no relief on the grounds that there was an appearance of unlawful command influence; if the government does not meet its evidentiary burden, however, the court will fashion an appropriate remedy).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).