Today, CAAF will hear oral arguments in United States v. Eric R. Proctor. CAAF granted review on the following issue:
Did the Air Force Court err when it found beyond a reasonable doubt that this unlawful command influence did not place an intolerable strain on the public's perception of the military justice system?
CAAF Briefs Here.
Prior to TSgt Eric R. Proctor's (Appellant) court martial, LtCol MS held a bi-annual commander's call where they discussed an array of topics, one in particular was the bad behavior of NCOs. It was at this call that LtCol MS, who preferred charged against Appellant, told the squadron that they should not enable bad behaving NCOs. No specific reference was made towards Appellant.
Subsequently, Appellant was convicted of six specifications of willfully disobeying a lawful command from his squadron commander, one specification of assault consummated by a battery, and one specification of wrongfully communicating a threat. He was sentenced to a bad-conduct discharge, hard labor without confinement for three months, and reduction to the grade of E-3. The convening authority approved the bad-conduct discharge, the reduction in grade, and disapproved the hard labor without confinement.
Appellant subsequently appealed his conviction, arguing that LtCol Ms committed UCI by discussing bad behaving NCOs.
On appeal, the AFFCA affirmed Appellant's findings and sentence, but found that Appellant met his initial showing of “some evidence” of apparent unlawful command influence. Even though the AFCCA found that "some evidence" existed, they ultimately held that the Government proved that there was no intolerable strain on the military justice system.
First, Appellant argues the totality of the circumstances establish UCI because Lt Col M.S. dissuaded his subordinates from vocalizing support for Appellant. Appellant contends the Government cannot prove beyond a reasonable doubt that UCI 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 Appellants proceeding. Appellant advances that the Government’s own witness on direct examination, SSgt SG, demonstrates how LtCol MS’s comments were negatively construed in the squadron by stating on direct examination, the LtCol MS’s message was “pretty messed up.” Appellant further points out that no remedial measures were taken to remove the sting of the “taint from Lt Col M.S.’s UCI,” thereby exacerbating personal prejudice and demonstrating an intolerable strain on the public’s perception of the military justice system.
Second, the Government argues that Appellant’s failure to raise prejudice or unfairness precludes him from making this argument to CAAF. The Government reasons that “no objective, disinterested member of the public would intuit that on his behalf.” Resolved, the Government points out the strategic advantage that Appellant would have if the Court subjected the record to an analysis of whether the Government rebutted the prejudice prong for apparent UCI. Additionally, the Government points out that the AFCCA did not hold UCI in Appellant’s case and maintains that the Court should consider the commander’s mission to ensure a fair court-martial and maintain good order and discipline within the unit. The Government discussed the myriad of reasons for the commander’s focus on NCO bad behavior, including NCO physical fitness failures, a TSgt charged with a DUI, inappropriate Facebook boosts, a motorcycle accident, and other issues unrelated to Appellant’s case. The Government relies on the military judge’s finding that the commanders call “fails to create an atmosphere with the appearance of a chilling effect on members of the command that if you testify for this accused, their career will be in jeopardy.”
Finally, in his reply brief, Appellant posits that LtCol MS’s expression of displeasure regarding SSgt. C.M.’s acquittal, a case with almost identical charges, is proof of UCI undermining prospective witnesses for Appellant’s case. Additionally, Appellant argues that LtCol MS’s discussion with TSgt T.A., who testified against SSgt C.M., following SSgt C.M.’s acquittal, was related to Appellant’s case due to the nature of the specifications. Next, Appellant contends that Lt Col M.S.’s commander’s call tainted the hundreds of prospective witnesses on the call when he told his unit that while “they may think they know everything that’s going on,” Lt Col M.S. had “the big picture and [knew] everything that’s going on, and there’s more than one chapter to a book. Finally, Appellant attacks the credibility of the Government’s witness, and the concession of the concerning nature of a story Lt Col M.S. told describing a time he refused to write a character letter for an airman.
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