Filed: Aug. 18, 2004
Latest Update: Mar. 26, 2017
Summary: defense counsel, Come back tomorrow and Ill have the .the potential command influence issue.the defense called Chief Metheny as a witness.the testimony of Lieutenant Maye.command decision to court-martial Appellant.generally United States v. Stombaugh, 40 M.J.Lieutenant Weber.different remedy.
IN THE CASE OF
UNITED STATES, Appellee
v.
Rico S. GORE, Equipment Operator Constructionman
U.S. Navy, Appellant
No. 03-6003
Crim. App. No. 200300348
United States Court of Appeals for the Armed Forces
Argued December 9, 2003
Decided August 18, 2004
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.
United States v. Gore, No. 03-6003/NA
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.” United States v. Thomas, 22 M.J. 388, 393 (C.M.A.
1986). This case concerns unlawful command influence by a
commanding officer who ordered a senior enlisted Chief petty
officer not to testify in support of Appellant and may have
deterred others at the command from testifying on behalf of
Appellant. As a remedy for the unlawful command influence, the
military judge ordered the charges dismissed with prejudice.
The Government filed an interlocutory appeal of the ruling of
the military judge. The lower court also found unlawful command
influence but disagreed with the military judge’s remedy. We
granted review of two issues but focus on whether the military
judge abused his discretion in the remedy he imposed because of
the unlawful command influence. In resolving this issue, we
address the nature and effect of the unlawful command influence
and the alternative remedies available to address it.
The granted issues are:
I.
WHETHER, HAVING FOUND UNLAWFUL COMMAND INFLUENCE, THE
MILITARY JUDGE ABUSED HIS DISCRETION IN DISMISSING THE
CASE WITH PREJUDICE.
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United States v. Gore, No. 03-6003/NA
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
assigned to U.S. Naval Mobile Construction Battalion ONE-THIRTY-
THREE located at Gulfport, Mississippi. Appellant was charged
with two specifications of desertion and one specification of
unauthorized absence, in violation of Articles 85 and 86, UCMJ,
10 U.S.C. §§ 885 and 886 (2000), respectively. Appellant was
placed in pretrial confinement on September 3, 2002, and charges
were preferred and referred to a special court-martial on
September 10, 2002.
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
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United States v. Gore, No. 03-6003/NA
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.
Ct. Crim. App. Jan. 15, 2003). The military judge complied with
the CCA’s order. The military judge’s second findings of fact
and his conclusions of law are restated in the lower court
opinion. United States v. Gore, 58 M.J. 776, 778-84 (N-M. Ct.
Crim. App. 2003).*
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.” Id. at 788. This remand
order was not executed as this Court granted Appellant’s
petition for grant of review under Article 67(a)(3), UCMJ, 10
U.S.C. § 867(a)(3)(2000).
*
It should be noted that the events related to the unlawful
command influence occurred in the month of November rather than
September 2002.
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United States v. Gore, No. 03-6003/NA
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
Gulfport, Mississippi. For reasons that are not stated in the
record, the court-martial was convened at Naval Air Station,
Pensacola, Florida. As the detailed defense counsel, Lieutenant
Brian Maye, was stationed in Gulfport, he and any witnesses from
Appellant’s command were required to travel to Pensacola for the
trial.
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
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United States v. Gore, No. 03-6003/NA
going on base was “standard practice” and had “never been
discouraged.” Lieutenant Maye explained, “In Gulfport, the JAG
attorneys . . . wear two hats. We are defense attorneys. Also
we are legal assistance attorneys. So it’s very common for us
to go over to the spaces. We are frequently over to those
spaces.”
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.
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United States v. Gore, No. 03-6003/NA
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.”
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United States v. Gore, No. 03-6003/NA
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 Pensacola the next day to testify. Although
Lieutenant Maye thought the command may have resolved the
problem and that Chief Metheny would testify favorably for the
defense as he had initially indicated he would, Lieutenant Maye
proceeded to prepare to raise the command influence issue at the
court-martial.
Based on these developments, on the evening of November 20
trial defense counsel prepared a Motion to Dismiss due to
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United States v. Gore, No. 03-6003/NA
unlawful command influence and informed trial counsel of this
issue. Having traveled to Pensacola the next morning, trial
defense counsel and trial counsel informed the military judge of
the potential command influence issue.
However, as Chief Metheny was also present in Pensacola and
available as a witness, Lieutenant Maye met with him to discuss
his testimony. Here again, Chief Metheny informed defense
counsel that he could not help the defense. Defense counsel
testified that Chief Metheny said, “Lieutenant, I’m here. The
CO told me to be here, but I’m not going to be any help to you.
The CO told me to to[e] the line and that’s what I’m doing. I’m
not testifying.” Chief Metheny further stated that the accused
was going to be released within 30 days and the accused was not
worth risking his career. He conceded that the commanding
officer did exert pressure over his prospective testimony.
Lieutenant Maye also testified that Chief Metheny told him that
“he had to recognize that the Commanding Officer authorized his
fitness reports.” Lieutenant Maye testified that Chief Metheny
also said “Even if the CO is exposed, he’s going to get a slap
on the wrist. He’s . . . either going to make Captain or he’s a
Captain-select. That’s the way it works, Lieutenant.”
Finally, Lieutenant Maye testified that Chief Metheny stated
that the commanding officer had called him on the telephone the
night before trial and told him “You’re going to Pensacola and
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United States v. Gore, No. 03-6003/NA
you know what the . . . command’s position is on this matter.”
According to Lieutenant Maye, Chief Metheny said that if he did
testify that he would “testify consistent with the command’s
wishes.” Chief Metheny informed Lieutenant Maye that there
would be repercussions if he testified in support of Appellant.
Chief Metheny did not state that the commanding officer
threatened that, rather, he indicated that he believed he “would
never make Senior [Chief]” if he testified. Lieutenant Maye
testified that in a final conversation, shortly before the
court-martial began, Chief Metheny stated that he had “a family
to protect . . .[and he is] going to say exactly what the
command wants [him] to say.”
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 Gulfport and the morning of trial in Pensacola.
10
United States v. Gore, No. 03-6003/NA
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
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United States v. Gore, No. 03-6003/NA
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
12
United States v. Gore, No. 03-6003/NA
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 Pensacola. Anything you need me to do?’ And
my understanding is that the CO said, ‘You’re not going.’ And
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United States v. Gore, No. 03-6003/NA
the Chief’s response was, ‘Roger that.’ And that was the end of
the conversation.”
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 United States [v.]
Biagase, 50 M.J. 143 [C.A.A.F. 1999]. And it is now incumbent
upon the government to illustrate beyond a reasonable doubt that
there was not unlawful command influence in this case.” After a
brief recess, the prosecution called the CA, Commander Douglas
G. Morton, CEC, U.S. Navy, to testify.
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
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United States v. Gore, No. 03-6003/NA
counsel] coming in my spaces, approaching one of my Chiefs
without my knowledge, and asking them or ordering them to come
to Pensacola [to testify]. So, I told the Chief I didn’t want
him to go to Pensacola, and . . . that was all there was to it.”
He further stated that he was “disturbed” and “really offended”
that defense counsel did not approach him, the executive
officer, or any command administrative staff prior to speaking
with Chief Metheny, particularly since he had already entered
into a pretrial agreement with Appellant. Commander Morton
stated that he told Chief Metheny that he was “angry that
Lieutenant Maye would come into my spaces.”
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.”
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United States v. Gore, No. 03-6003/NA
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
16
United States v. Gore, No. 03-6003/NA
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 Pensacola
and answer all questions that you’re asked.”
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,
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United States v. Gore, No. 03-6003/NA
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 United States [v.] Biagase, 50 M[.]J[.]
143 [C.A.A.F. 1999] 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. And this is going to be what
we are about to see, the eradication of something that
has shocked the consci[ence] of this court.
. . . .
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.
In the military judge’s findings of fact and conclusions of
law, following the initial remand by the lower court, he
reaffirmed his initial evaluation of the unlawful command
18
United States v. Gore, No. 03-6003/NA
influence and its impact on this case. He stated that “there
could not be a more crystalline example of unlawful command
influence.” The judge concluded that the “only remedy that
addressed the rabid form of unlawful command influence placed
before the [c]ourt was dismissal with prejudice.”
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.
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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 U.S. 422, 432,
103 S. Ct. 843, 850,
74
L. Ed. 2d 646 (1983), quoting 28 U.S.C. § 2254(d)(8). "[T]o
give due deference to the trial bench," a determination of
fact "should not be disturbed unless it is unsupported by
the evidence of record or was clearly erroneous." United
States v. Middleton, 10 M.J. 123, 133 (C.M.A. 1981).
United States v. Burris,
21 M.J. 140, 144 (C.M.A. 1985).
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
20
United States v. Gore, No. 03-6003/NA
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.” United States
v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986).
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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.”
United States v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994). See
generally United States v. Stombaugh,
40 M.J. 208, 211 (C.M.A.
1994)(detailing “many instances of unlawful command influence”
that this Court has condemned).
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 United States v. Gleason, 43 M.J.
69, 75 (C.A.A.F. 1995); United States v. Levite,
25 M.J. 334,
340 (C.M.A. 1987); Thomas, 22 M.J. at 393; United States v.
Rosser,
6 M.J. 267, 271-72 (C.M.A. 1979). In Thomas, we stated,
“The exercise of command influence tends to deprive
servicemembers of their constitutional rights. If directed
against prospective defense witnesses, it transgresses the
accused’s right to have access to favorable evidence.” 22 M.J.
at 393.
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
22
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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.” Id. at 152. In both
these cases, we recited with approval the curative action by the
military judge to ensure that alleged command influence did not
taint the court-martial. These cases recognize this authority
and the duty of the military judge to protect the servicemember
from unlawful command influence. We recently reaffirmed this
point, stating, “This Court has long recognized that, once
unlawful command influence is raised, ‘we believe it incumbent
on the military judge to act in the spirit of the [UCMJ] by
avoiding even the appearance of evil in his courtroom and by
establishing the confidence of the general public in the
fairness of the court-martial proceedings.’”
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
23
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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
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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
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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.” United States v.
Sullivan,
42 M.J. 360, 363 (C.A.A.F. 1995). Further, the abuse
of discretion standard of review recognizes that a judge has a
range of choices and will not be reversed so long as the
decision remains within that range. United States v. Wallace,
964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992).
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 United States v. Pinson,
56 M.J. 489, 493
(C.A.A.F. 2002) citing (United States v. Morrison,
449 U.S. 361,
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United States v. Gore, No. 03-6003/NA
364 (1981)(any action taken “had to be ‘tailored to the injury
suffered’”)). When an error can be rendered harmless, dismissal
is not an appropriate remedy. United States v. Mechanik, 475
U.S. 66 (1986). This Court explained in United States v. Green,
4 M.J. 203, 204 (C.M.A. 1978), that dismissal of charges is
appropriate when an accused would be prejudiced or no useful
purpose would be served by continuing the proceedings. Id.
(citing United States v. Gray, 22 C.M.A., 443, 445,
47 C.M.R.
484, 486 (1973).
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.”
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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.”
28
United States v. Gore, No. 03-6003/NA
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
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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.”
30
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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. Cf. Rivers, 49 M.J. at 440-43
(finding that remedial measures of the command and military
judge to insure availability of defense witnesses purged the
effects of unlawful command influence). In light of this “rabid
form of unlawful command influence[,]” the judge concluded that
“there was no way for the [c]ourt to be sure that the taint of
the commanding officer[’]s wrongful intervention had not spread
beyond its obvious impact on Chief Metheny . . . who was clearly
terrified that his career and family would be damaged if he
carried out his promise to testify on behalf of the accused.”
The military judge, therefore, “determined that dismissal with
prejudice was the only logical remedy available.”
31
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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.
32
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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
33
United States v. Gore, No. 03-6003/NA
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.
34
