United States v. Proctor, __ M.J. ___ (C.A.A.F. 2021)
In Proctor, the CAAF once again attempted to define the gray line of the appearance of unlawful command influence. Specifically, the Court focused on a story told by Appellant’s squadron commander at a commander’s call, highlighting the negative career impacts a military member could suffer for providing a character letter to an accused military member. The call was a week before preferral of charges, but after the he had decided to prefer charges. One year later, Appellant was convicted, receiving no character letters from the members of his squadron during the sentencing phase.
In a three to two decision, the CAAF found Appellant had satisfied his initial burden to establish “some evidence” of unlawful command influence, but “an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding.”
‘Command influence is the mortal enemy of military justice.’ It strikes at the very heart of the system. Unlawful command influence undermines the integrity of the military justice system as well as of the commanders who are responsible for discipline within their units. Unlawful command influence has been a concern since World War I. Because of the number of post-World War II complaints concerning the issue, Congress responded with Articles 37 and 98, UCMJ, 10 USC § 837 and 898, respectively, which make command influence punishable under the Code.
United States v. Weasler, 43 M.J. 15, 16-17 (C.A.A.F. 1995) (internal citations omitted).
The Squadron Commander preferred charges against Appellant in June of 2017 that were withdrawn without prejudice on August 1, 2017. Six days later, at a prescheduled commander’s call, the Squadron Commander addressed various topics, including several NCOs’ misbehavior. He stressed the difference between supporting fellow military members and enabling them; and to demonstrate this difference, he told a story about a junior airman facing NJP who asked him to write a character statement on his behalf. The Squadron Commander refused to provide the letter because he believed his duty was to promote the good order and discipline of the unit, which the junior airman had undermined. Moreover, he suggested that his commander would have questioned his judgment had he provided the junior airman a letter, and the commander may not have sent him to military police investigator school. Though the Squadron Commander did not mention anyone by name or connect the story to any specific NCO misconduct, he testified that, among other incidents, he did have Appellant’s misbehavior in mind when telling the story.
The Defense filed a pretrial motion to dismiss all charges, alleging the appearance of unlawful command influence. Appellant called several members of the squadron to testify about the effect of the squadron leader’s story. Each witness understood the story in a different light. One suggested that the message was “support your fellow airmen, even if they are in trouble.” Another felt free to write a character letter for whomever he wished, though he might have felt differently if he intended to make the military a long-term career. And another left the meeting confused but believed he could cooperate with Appellant’s counsel and write a character letter on Appellant’s behalf without facing any repercussions.
Appellant’s court-martial occurred a year later. By this time, the Squadron Commander had changed duty stations. And no squadron member came to Appellant’s aid during the sentencing phase.
The majority agreed with the AFCCA that Appellant established “some evidence” of unlawful command influence. First, it noted that the Squadron Commander had Appellant’s misconduct in mind when he told the story, and that he knew that he was going forward with new charges against Appellant. Second, some of the squadron members who testified connected the Squadron Commander’s discussion of “enabling” with assisting an individual’s defense. Lastly, Appellant received no support from any member of his squadron during the sentencing phase.
However, the majority found that the Government proved beyond a reasonable doubt that the appearance of unlawful command influence “did not place an intolerable strain upon the public’s perception of the military justice system.” The Court noted that the record included no evidence of any airman refusing to testify or write a character letter on Appellant’s behalf; nor did any military member testify that the Squadron Commander’s story changed their mind about their support for Appellant.
The majority next suggested that the connection between the Squadron Commander’s comments and the lack of support provided by Appellant’s squadron members was “tenuous at best.” The Squadron Commander did not mention Appellant by name or rank, and Appellant was one among several NCOs who had misbehaved. Moreover, the trial court found no evidence to support Appellant’s allegation that the Squadron Commander intentionally sought to deter support for Appellant, a finding the majority upheld.
The majority also pointed to the timing of both the trial and the Squadron Commander’s transfer. Over a year passed between the meeting and the trial, and the Squadron Commander had permanently relocated. Furthermore, Appellant received four character letters, and four witnesses testified on his behalf, including two airmen who served with Appellant as security forces personnel. And “the panel gave [Appellant] much of what his defense counsel asked for during sentencing.” Consequently, the Squadron Commander’s statements had no outcome on the case.
Chief Judge Stucky wrote a dissent in which Judge Ohlson joined. They agreed that Appellant presented some evidence of unlawful command influence. However, they argued that the Government failed to prove beyond a reasonable doubt that an objective, disinterested observer would not doubt the fairness of the proceedings.
The dissent noted that the Squadron Commander had Appellant in mind when he made his comments and that his remarks led several NCOs to believe that he was referencing Appellant’s situation. Judge Stucky also stressed the Squadron Commander’s emphasis on the negative consequences that might stem from writing a character letter. Moreover, the dissent pointed to the Squadron Commander’s negative reaction to a staff sergeant’s comment to law enforcement officials that supported Appellant’s case. The staff sergeant likely heard of the Squadron Commander’s reaction, and he provided no further support to Appellate.
Finally, while individuals from Appellant’s squadron testified that they did not fear punishment for writing a character letter, several suggested that it might undermine their career; consequently, they were effectively deterred from writing in support of Appellant. Neither the absence of the Squadron Commander at the time of trial nor the gap between the meeting and the trial was enough to cure the defect.
Judge Stucky compared these facts to those in United States v. Thomas—the 10th Armor case. There, a major general expressed his displeasure with commanders who testified to an accused’s character. Because the commanders interpreted the general’s comments as suggesting that those from an accused’s unit should not give favorable presentencing testimony, the CMA found unlawful command influence. Likewise, Appellant had “presented significant indirect evidence of the chilling effect of [the Squadron Commander’s] words,” and the Government failed to prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain on the public’s perception of the military justice system. The dissent would therefore have found unlawful command influence.
The appearance of unlawful command influence remains a fact-intensive inquiry over which reasonable minds may disagree: This case being a prime example. Moreover, the standard itself provides significant judicial discretion.
But, more importantly, the burden of proof that ostensibly shifts to the Government after the Defense presents “some evidence” of unlawful command influence seems, at least in this case, to have been satisfied not by affirmative evidence presented by the Government, but by the Defense’s failure to present sufficient evidence.  In fact, the dissent accused the majority of misstating the burden of proof.
Congress’s recent response to command influence issues has been to limit who and what violates the constitutional right to a fair trial with recent amendments to Article 37, UCMJ. So, United States v. Proctor and perhaps ACCA’s recent decision in United States v. Alton may be the last we hear of apparent UCI. Let’s see if Alton petitions for review because the facts present a much harder case for the Government.
Bottom line, the discussions about command influence post-WW-I and WW-II focused on actual influences with no attention to what developed into the appearance of influence doctrine. We are back to the past are we not?
Jacob Weaver (from the CAAF desk).
 Ed. note for trial practitioners, see comments to the post about Bess v. United States, especially related to what the defense did not do. If you haven't noticed, paternalism is out at CAAF (and the CCA's); as a well respected Army judge advocate said quite a while ago. LTC Patricia A. Ham, Making the Appellate Record: A Trial Defense Attorney’s Guide to Preserving Objections—The Why and How, ARMY LAW., Mar. 2003, at 10 (noting that the CAAF has abandoned past paternalistic tendencies and that very few issues are not subject to waiver). Thinking the issues through, you might also read Monu Bedi, Unraveling Unlawful Command Influence. 93 WASH. UNIV. L. REV. 1401 (2016).
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