Filed: Aug. 19, 2005
Latest Update: Feb. 12, 2020
Summary: [Defense counsel]: Your communication with, respect to [Appellant] and Airman Pennington, did not specify any duration under which, your order was in place, did it in this case.factual aspects of the issue the Court declines to do so. These are questions of fact for, the members to determine.
IN THE CASE OF
UNITED STATES, Appellee
v.
Christopher D. DEISHER, Airman Basic
U.S. Air Force, Appellant
No. 04-0555
Crim. App. No. 35143
United States Court of Appeals for the Armed Forces
Argued February 9, 2005
Decided August 19, 2005
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and ERDMANN, J., joined. CRAWFORD and BAKER, JJ., each
filed a separate dissenting opinion.
Counsel
For Appellant: Colonel Carlos L. McDade (argued); Major Andrew
S. Williams (on brief).
For Appellee: Major Steven R. Kaufman (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Major Lane A. Thurgood (on brief).
Military Judge: Steven A. Hatfield
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Deisher, No. 04-0555/AF
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer members,
Appellant was convicted, pursuant to mixed pleas, of wrongful
use of a controlled substance (four specifications) and failure
to obey a lawful order, in violation of Articles 112a and 92,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 892.
He was sentenced to a bad-conduct discharge, confinement for ten
months, and forfeiture of all pay and allowances. The convening
authority approved the sentence, and the United States Air Force
Court of Criminal Appeals affirmed the findings and sentence in
an unpublished opinion.
The present appeal concerns the responsibility of a
*
military judge to determine the lawfulness of an order. For the
reasons set forth below, we conclude that the military judge
erred by treating an issue of law, the legality of an order, as
a question of fact to be decided by the court-martial panel, and
that the error was prejudicial.
I. BACKGROUND
A. THE MOTION TO DISMISS THE CHARGE
The pertinent charge alleged that Appellant failed to obey
a lawful order from a Security Forces Investigator, Staff
Sergeant (SSgt) Hazen, to have no contact with Airman (Amn)
Pennington. According to the prosecution, the investigator
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United States v. Deisher, No. 04-0555/AF
issued the order in the aftermath of an altercation between
Appellant and Amn Pennington.
In a pretrial session, defense counsel moved to dismiss the
charge on the ground that the communication from the
investigator to Appellant did not have the legal attributes of a
lawful order. The motion was litigated on the basis of two
exhibits: the memorandum prepared by SSgt Hazen a month after
the incident, and a summary of SSgt Hazen’s subsequent testimony
at the pretrial investigation hearing under Article 32, UCMJ, 10
U.S.C. § 832 (2000). The exhibits reflect the investigator’s
testimony that he gave Appellant a no-contact order on more than
one occasion, although he could not recall the exact words
communicated to Appellant. According to the investigator, a
senior airman was present on two occasions, and Appellant’s
first sergeant was present on one occasion. The investigator
did not know whether Appellant understood the order in view of
his “mental state,” but he stated that Appellant acknowledged
the order. The order had no expiration date, and it was not
reduced to writing.
In support of the motion to dismiss the charge, defense
counsel argued that the investigator’s communication to
Appellant did not possess the attributes of a lawful order.
According to defense counsel: (1) the communication lacked the
requisite clarity of a lawful order; (2) the communication was
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United States v. Deisher, No. 04-0555/AF
deficient because it did not establish a definite duration for
the alleged no-contact order; and (3) the alleged order exceeded
the investigator’s authority because it did not have the
approval of Appellant’s chain of command. As authority for
these arguments, defense counsel cited a number of cases
addressing the contours of a lawful order, including United
States v. Hill, 49 M.J. 242 (C.A.A.F. 1998), and United States
v. Womack,
29 M.J. 88 (C.M.A. 1989). The prosecution, in
response, argued that a lawful order had been issued, relying
primarily on the circumstances surrounding the alleged assault,
the need for a no-contact order in the aftermath of the
incident, and the role of a no-contact order in protecting the
victim of the alleged assault and the good order of the service.
After discussing the substance of the order, the
prosecution stated that the issue of legality should be resolved
by the court-martial panel rather than the military judge.
According to the prosecution, “if the lawfulness of the order is
questioned, then that would be an issue -- it would be a fact
issue for a panel.”
Defense counsel disagreed with the prosecution’s view that
the defense had raised factual questions that should be resolved
by the panel. According to defense counsel, the responsibility
for addressing the issue was vested in the military judge, who
was required “to apply the facts to the law.”
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United States v. Deisher, No. 04-0555/AF
When the military judge suggested that the defense had
raised a factual question -- “whether or not the order was even
given” -- defense counsel emphasized that the military judge had
identified only one of the pertinent questions. Defense counsel
noted that the factual existence of an order constituted only
one aspect of the case, and that the motion to dismiss involved
broader questions of law, requiring the military judge to
address the uncertainty as to the content of the order, the
indefinite duration of the order, and the issue of whether the
alleged order was approved by Appellant’s command.
The military judge took the issue under advisement.
Subsequently, he issued a written ruling rejecting the defense
motion to dismiss the charge on the following grounds:
Based on the proffered facts, the court
cannot find as a matter of law the alleged
order was unlawful. The defense motion is
essentially an argument that the evidence is
insufficient to establish either that an
order was given or that it was lawful.
These are questions of fact for the members
to determine.
B. TRIAL PROCEEDINGS
During trial on the merits, the prosecution relied
primarily on the testimony of the investigator, SSgt Hazen, to
prove that the charged order had been communicated to Appellant.
SSgt Hazen testified that he was one of several persons
investigating the altercation between Appellant and Amn
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United States v. Deisher, No. 04-0555/AF
Pennington. Based upon witness statements indicating that
Appellant might have used Valium without a prescription, SSgt
Hazen and another investigator transported Appellant to the
medical clinic for a drug test.
SSgt Hazen testified that the no-contact order was first
issued to Appellant while they were in the car, accompanied by
Amn Lewis, who was also assigned to the investigation. SSgt
Hazen said that he could not recall the specific words of the
order, noting that “we didn’t talk very much, especially on the
way there. It was just him worried about what’s going to happen
to him.” SSgt Hazen added that he told Appellant: “Let’s get
this behind you. Don’t worry about it. Just don’t have any
more contact with Pennington. Don’t get yourself in any more
trouble.” According to SSgt Hazen, Appellant responded by
saying, “I know, I know.”
SSgt Hazen testified that he issued a second order after
they arrived at the clinic:
ATC [Assistant Trial Counsel]: . . . At any
point during the time you were at the
[clinic] with the accused, was his first
sergeant there?
WIT [SSgt Hazen]: Yes, sir, he was. He met
us there. . . .
Q. Did you give the accused any orders while
you were there?
A. Yes, sir. In front of his first sergeant
[Senior Master Sergeant Speer], I gave him a
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United States v. Deisher, No. 04-0555/AF
lawful order to have no contact with Airman
Pennington.
SSgt Hazen added that both Amn Lewis and Senior Master Sergeant
Speer heard what he said to Appellant.
The testimony then turned to the details of the
communication:
Q. And how is it that you gave the order?
A. Ninety-nine percent of the time the
orders are always the same and it’s, “I’m
give [sic] you a lawful order to have no
contact with the victim.” At this time, it
was Airman Pennington. “And if he does
approach you, you need to contact somebody
in your chain of command or contact us, and
we’ll take care of it right away.”
Q. Now, in this particular case, I know that
you said, “This is how we do it,” but how
was it done in this case?
A. The specifics, I’m -- that’s what I’m
going to say. I said that -- again, it was
awhile back and I’m almost positive that’s
what I said.
SSgt Hazen added that Appellant acknowledged this communication
by nodding his head.
According to SSgt Hazen, he issued a third no-contact order
while he and Amn Lewis drove Appellant back to the base from the
clinic:
[A]t that time after the test and everything
on the way back, he was a little bit more
talkative, a little bit more concerned. And
I talked to him a little bit more about
different things other than the case and got
to know him a little bit better. But from
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United States v. Deisher, No. 04-0555/AF
that, that’s when I said, “Well, stay out of
trouble. You seem to be doing okay,
everything else you’re doing.” I didn’t
know much about the OSI case [involving
separate charges], but this was just --
after -- I said, “You could still make a
career out of this. Let’s not screw up any
more, and don’t have any more contact with
Pennington.”
Although he could not remember the exact terms, SSgt Hazen said
that Appellant acknowledged the third communication: “[I]t was
something to the effect, ‘I know. I know. I’m going to stay
out of trouble. I’m going to be okay,’ and stuff.”
Defense counsel began cross-examination by asking SSgt
Hazen if he remembered the terms of the order. SSgt Hazen
answered, “No, ma’am.” In response to further questioning, SSgt
Hazen noted that the report of the investigation did not mention
that a no-contact order had been issued, and that the order had
not been documented until a month after the incident. The
defense counsel then turned to the content of the
communications:
[Defense counsel]: Your communication with
respect to [Appellant] and Airman Pennington
did not specify any duration under which
your order was in place, did it?
A. No, ma’am, it didn’t.
Q. And you can’t provide the court or the
members any more information about the
language that you used in communicating with
[Appellant].
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United States v. Deisher, No. 04-0555/AF
A. The only one I feel comfortable under
oath with is the statement that I gave in
front of the emergency room.
Q. And you don’t recall the words of that
statement to [Appellant].
A: I do feel comfortable saying that what I
-- I expressed to [trial counsel], that
that’s what I said, minus -- maybe changing
a word or two. But that’s -- under oath, I
will say that I said that.
Q: So you do have a recollection of the
words used or you don’t.
A: Again, exact words --
Q: Do you have a recollection today of the
words used?
A: Yes, ma’am, and that’s what I told [trial
counsel].
Q: And the gist of that was not to approach
Airman Pennington, correct?
A. Yes, ma’am.
. . . .
Q. You never informed [Appellant] that he
could be criminally charged with violating
the direction that you gave him on that day,
correct?
A. Again, I don’t think I did. I might
have, but I don’t think I did.
SSgt Hazen also acknowledged that he never spoke to
Appellant’s commander about the no-contact order. During
redirect examination, the prosecution returned to the content of
the communication:
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United States v. Deisher, No. 04-0555/AF
Q: Investigator Hazen, to the best of your
recollection, what were the words that were
communicated from you to the accused in
front of his first sergeant?
A. I started with, “In front of your first
sergeant, I’m giving you a lawful order to
have no contact with Airman Pennington; and
if he approaches you, let somebody in your
chain of command know or let me know and
we’ll take care of it as soon as possible.”
In response to questions from members of the panel, SSgt Hazen
said that he issued no-contact orders about once a week in his
capacity as an investigator and that they were never issued in
written form. He also said that in the present case, he issued
no-contact orders to both Appellant and Amn Pennington on the
same day.
Without objection from defense counsel, the military judge
instructed the members on the four elements of violating a
lawful order:
[O]ne, that a member of the armed forces;
namely, Staff Sergeant Scott Hazen, issued a
certain lawful order to have no contact with
A1C [Airman First Class] Steven Pennington;
two, that the accused had knowledge of the
order; three, that the accused had a duty to
obey the order; and four, that at Peterson
Air Force Base, on or about 4 August 2001,
the accused failed to obey the order.
An order, to be lawful, must relate to
specific military duty and be one that the
member of the armed forces is authorized to
give. An order is lawful if it is
reasonably necessary to safeguard and
protect the morale, discipline, and
usefulness of the members of a command and
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United States v. Deisher, No. 04-0555/AF
is directly connected with the maintenance
of good order in the services. It is
illegal if it is unrelated to military duty,
its sole purpose is to accomplish some
private end, it is arbitrary and
unreasonable, or it is given for the sole
purpose of increasing the penalty for an
offense that it is expected the accused may
commit. You may find the accused guilty of
failing to obey a lawful order only if you
are satisfied beyond a reasonable doubt that
the order was lawful.
II. JUDICIAL RESPONSIBILITY
TO DETERMINE THE LAWFULNESS OF AN ORDER
When a servicemember is charged with violation of a lawful
order, the legality of the order is an issue of law that must be
decided by the military judge, not the court-martial panel.
Article 51(b), UCMJ, 10 U.S.C. § 851(b) (2000); United States v.
New, 55 M.J. 95, 105 (C.A.A.F. 2001). We employ a de novo
standard of review to assess the rulings of the military judge
concerning the lawfulness of the charged order, including his
decision to submit the issue of lawfulness to the court-martial
panel.
New, 55 M.J. at 100, 106.
An order is presumed to be lawful, and the accused bears
the burden of rebutting the presumption. See United States v.
Hughey, 46 M.J. 152, 154 (C.A.A.F. 1997). The essential
attributes of a lawful order include: (1) issuance by competent
authority -- a person authorized by applicable law to give such
an order; (2) communication of words that express a specific
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United States v. Deisher, No. 04-0555/AF
mandate to do or not do a specific act; and (3) relationship of
the mandate to a military duty. See id. at 100-01; Manual for
Courts-Martial, United States (2002 ed.) (MCM), pt. IV, ¶ 14.c.
(2)(a). In addition, the accused may challenge an order on the
grounds that it would require the recipient to perform an
illegal act or that it conflicts with that person’s statutory or
constitutional rights. See MCM, pt. IV, ¶ 14.c. (2)(a)(i),
(iv).
The lawfulness of an order, like other issues of law, may
involve questions of fact that must be addressed by the military
judge for the limited purpose of resolving the issue of law.
See Rule for Courts-Martial (R.C.M.) 905(d). The consideration
of such factual matters by the military judge in the course of
addressing an issue of law is distinct from, and does not
preempt, the responsibility of a court-martial panel to address
factual matters pertinent to the elements of an offense in the
course of returning findings on the issue of guilt or innocence.
Compare, e.g., R.C.M. 905(c)(1) (burden of proof when a military
judge must resolve a factual issue in the course of deciding a
motion), with R.C.M. 920 (instructions to a court-martial panel
on findings). Cf. R.C.M. 916(d) discussion (addressing the
responsibility for determining factual aspects of lawfulness in
the context of the defense of obedience to orders). In cases
where direct, local orders are given, the fact-laden nature of
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United States v. Deisher, No. 04-0555/AF
those cases makes it particularly important that the military
judge identify factual issues that the members must resolve. In
the present case, for example, the military judge recognized
that the factual issue of whether an order was given -- that is,
whether certain words were communicated to the accused --
involved proof of an element that ultimately would have to be
resolved by the members.
When the defense moves to dismiss a charge on the grounds
that the alleged order was not lawful, the military judge must
determine whether there is an adequate factual basis for the
allegation that the order was lawful. In the course of acting
on such a motion, if the military judge rules that a specific
set of words would constitute a lawful order under a specific
set of circumstances, that is a preliminary ruling. The
military judge’s ruling does not relieve the prosecution of the
responsibility during its case-in-chief of proving beyond a
reasonable doubt the facts necessary to establish the elements
of the offense. See, e.g., MCM, pt. IV, ¶ 16.b. (2).
Our decision in New -- holding that the lawfulness of an
order is not an element, but is an issue of law to be resolved
by the military judge, not members -- was released approximately
six months before Appellant’s court-martial. In the present
case, the military judge erred in ruling on the motion to
dismiss by treating both the issue of lawfulness and the
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United States v. Deisher, No. 04-0555/AF
predicate factual aspects of the lawfulness issue as matters to
be resolved by the members. The error is reflected both in his
ruling on the motion and in his subsequent submission of the
issue of lawfulness to the members.
The Government contends that Appellant was not harmed
because the submission of the issue of lawfulness to the members
after the military judge ruled on the lawfulness issue
gratuitously provided Appellant with a second chance to prevail
on the issue. The Government suggests that the military judge
relied on the presumption of lawfulness in denying the motion to
dismiss, and then simply provided the defense with a second bite
at the apple when he submitted the issue of lawfulness to the
members.
The Government’s approach might have some merit in a case
where the issue of lawfulness could be addressed without
resolution of significant underlying factual disputes. This is
not such a case. Appellant vigorously challenged the issue of
lawfulness by emphasizing specific predicate factual questions,
such as the uncertainty as to the terms and conditions of the
alleged order. The military judge’s determination that these
questions raised by the Appellant were factual matters to be
decided by the panel and his subsequent submission of the
lawfulness issue to the panel indicate that the military judge
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United States v. Deisher, No. 04-0555/AF
did not resolve the predicate factual questions before
concluding that the charged order was lawful.
Accordingly, we cannot be confident that the issue of
lawfulness was resolved by the military judge, as required by
New, prior to submission of the issue to the panel. Because
there is a distinct possibility that the military judge did not
resolve the predicate factual questions necessary to determine
the issue of law, his ruling on the lawfulness issue is
critically undermined. In acting on the defense motion to
dismiss, the military judge’s ruling that “the court cannot find
as a matter of law the alleged order was unlawful” is far from
an affirmative judicial determination that the order was lawful.
In this context, there is a significant likelihood that the
issue of lawfulness was resolved only by the panel -- a body not
trained in the law or empowered to rule on that issue. These
circumstances leave us in grave doubt as to the validity of the
findings. See Kotteakos v. United States, 328 U.S. 750, 765
(1946).
The same considerations lead us to reject the Government’s
contention that Appellant waived the issue by not objecting to
the pertinent instructions of the military judge on findings.
The defense did not acquiesce in the military judge’s approach
to the issue of lawfulness. As noted above, the defense
litigated the motion to dismiss by specifically asking the
15
United States v. Deisher, No. 04-0555/AF
military judge to address the factual matters pertinent to the
lawfulness of the order. The military judge indicated that he
would not do so and would instead submit the issue to the
members. Once the military judge rejected the defense position
and announced that he would submit the issue of lawfulness to
the members, there was no need for the defense to repeat its
concerns to preserve the issue.
Because we review the issue of lawfulness under a de novo
standard, we could bypass the military judge’s approach and
decide on the basis of the record before us whether the order
was lawful. In view of the significant factual aspects of the
issue in the present case, however, we decline to do so. Under
the circumstances of this case, particularly the multiple
versions of the order given in varying contexts, the issue of
lawfulness should be decided in the first instance by a military
judge who takes testimony, observes the witnesses, and weighs
the evidence in the course of resolving any factual questions
that are predicates to the decision.
III. CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is reversed as to Additional Charge I, its
specification, and the sentence, but is affirmed in all other
respects. The findings as to Additional Charge I and its
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United States v. Deisher, No. 04-0555/AF
specification, as well as the sentence, are set aside. The
record of trial is returned to the Judge Advocate General of the
Air Force for remand to a convening authority for a rehearing on
Additional Charge I, its specification, and the sentence. If a
rehearing on Additional Charge I and its specification is deemed
impracticable, the specification may be dismissed and a
rehearing on the sentence alone will be conducted. Thereafter,
Articles 66 and 67, UCMJ, 10 U.S.C. §§ 866, 867 (2000), will
apply.
FOOTNOTE:
*
Upon Appellant’s petition, our Court specified the following
issue: “Whether plain error occurred under United States v. New,
55 M.J. 95 (C.A.A.F. 2001), when the military judge, contrary to
the defense request, submitted the question of the lawfulness of
the disobeyed order to the members.”
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United States v. Deisher, No. 04-0555/AF
CRAWFORD, Judge (dissenting):
It is unreasonable to hold that there was prejudicial error
in this case. The military judge implicitly found by a
preponderance of the evidence that the order was lawful and then
submitted those elements under appropriate instructions to the
court members. The members found that the prosecution had
proved all these elements beyond a reasonable doubt. Thus,
Appellant received “two bites of the apple” on the question of
the lawfulness of the order -- with the second bite imposing a
higher burden of proof on the prosecution when it presented its
case to the members. Surely these procedures inured to the
benefit of Appellant. A finding of guilty is not rendered any
less reliable when its lawfulness is determined beyond a
reasonable doubt. Cf. Neder v. United States, 527 U.S. 1, 17
(1999) (determining that “where a reviewing court concludes
beyond a reasonable doubt that [an] omitted element [in a jury
instruction] was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the same
absent the error, the erroneous instruction is properly found to
be harmless”). Because no sound reason has been put forth to
establish the unreliability of the findings, I respectfully
dissent.
United States v. Deisher, No. 04-0555/AF
BAKER, Judge (dissenting):
I concur in the majority’s analytic framework for
addressing the lawfulness of an order. As this Court held
in United States v. New, 55 M.J. 95 (C.A.A.F. 2001),
whether an order is lawful is a question of law for the
military judge -- and not the members -- to determine.
Before sending a change alleging a violation of a lawful
order to the members, a military judge must necessarily
make threshold contingent factual conclusions to determine
whether the order at issue is lawful.
However, while I agree with the Court’s analysis, I
respectfully dissent from the Court’s decision reversing
Additional Charge I rather than resolving the underlying
question of lawfulness at this time. In my view, we can
and should decide now whether the order Appellant received
was lawful. The facts are clear and settled with respect
to at least the second instance in which the order was
issued. In applying the law to the relevant facts now, we
can provide clarity to the law, serve both the Government’s
and Appellant’s interest in finality, and serve the
interest of judicial economy.
As the majority acknowledges, “[b]ecause we review the
issue of lawfulness under a de novo standard, we could
bypass the military judge’s approach and decide on the
United States v. Deisher, No. 04-0555/AF
basis of the record before us whether the order was
lawful.” Nonetheless, “[i]n view of the significant
factual aspects of the issue” the Court declines to do so.
The Court identifies as the basis for this statement “the
multiple versions of the order given in varying contexts.”
However, no other “factual aspects” requiring further
development are identified that would preclude this Court
from deciding the legal question at this time. And
particularly, no factual issues are identified with respect
to the second issuance of the order.
To start, there is nothing factually unclear about the
second issuance of the order. Staff Sergeant (SSgt) Hazen
testified that he told Appellant, “In front of your first
sergeant, I'm giving you a lawful order to have no contact
with Airman [(Amn)] Pennington; and if he approaches you,
let somebody in your chain of command know or let me know
and we'll take care of it as soon as possible.” More
specifically, SSgt Hazen testified that he issued the order
to Appellant while standing outside the entrance to the
emergency room. In addition, the following relevant
testimony is in the record and quoted in part in the lead
opinion.
ATC [Assistant Trial Counsel]: . . . At any
point during the time you were at the
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United States v. Deisher, No. 04-0555/AF
[clinic] with the accused, was his first
sergeant there?
WIT [SSgt Hazen]: Yes, sir, he was. He met
us there. . . .
Q. Did you give the accused any orders while
you were there?
A. Yes, sir. In front of his first sergeant
[Senior Master Sergeant Speer], I gave him a
lawful order to have no contact with Airman
Pennington.
. . . .
A. All right. Now, I don’t know if I got this before
or not, but was anybody there when you gave this
order?
Q. Yes, sir. Airman Lewis, who rode with me, was
there. Sergeant Pecqueur also drove separate. She
was there; and the first sergeant, at the time Senior
Speer, he was there also. I gave the order in front
of Senior Speer, and I’m not sure if Sergeant Pecqueur
heard it. But Ariman Lewis did hear it.
Q. And how is it that you gave the order?
A. Ninety-nine percent of the time the
orders are always the same and it’s, “I’m
[giving] you a lawful order to have no
contact with the victim.” At this time, it
was Airman Pennington. “And if he does
approach you, you need to contact somebody
in your chain of command or contact us, and
we’ll take care of it right away.”
Q. Now, in this particular case, I know that
you said, “This is how we do it,” but how
was it done in this case?
A. The specifics, I’m -- that’s what I’m
going to say. I said that -- again, it was
awhile back and I’m almost positive that’s
what I said.
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United States v. Deisher, No. 04-0555/AF
. . . .
Q. . . . did the accused acknowledge your order?
A. Yes, sir. I believe he just nodded his head.
Throughout -– this is based on in front of the
emergency room; but in the vehicle, he said, “I know,
I know” to me . . . .
Emphasis added.
Subsequent examination of SSgt Hazen by defense counsel
proceeded as follows:
Q. And you can’t provide the court or the
members any more information about the
language that you used in communicating with
Airman Basic Deisher.
A. The only one I feel comfortable under
oath with is the statement that I gave in
front of the emergency room.
Q. And you don’t recall the words of that
statement to [Appellant].
A: I do feel comfortable saying that what I
-- I expressed to [trial counsel], that
that’s what I said, minus -- maybe changing
a word or two. But that’s -- under oath, I
will say that I said that.
In response to questions from members of the panel, SSgt
Hazen said that he issued no-contact orders about once a
week in his capacity as an investigator and that they were
never issued in written form. He also said that in the
present case, he issued no-contact orders to both Appellant
and Amn Pennington on the same day.
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United States v. Deisher, No. 04-0555/AF
In general, military judges are better situated to
rule in the first instance on questions of lawfulness than
appellate judges for the obvious reasons that they may ask
questions of witnesses, observe their demeanor, and weigh
their credibility. However, in this case, the Court does
not identify any outstanding factual questions necessary to
resolve the lawfulness of this order. Moreover, although
there might arguably remain factual questions regarding the
first and third occasions on which SSgt Hazen gave the no-
contact order, in all three cases the substance was
consistent. So this is not a situation where the order at
the clinic was contradicted or clouded by the other orders.
The dispute is over the lawfulness of the order and whether
or not as a matter of factual and legal sufficiency,
Appellant heard and understood the order at least once.
Further, I do not see how the facts are going to be
developed further with respect to the second rendering of
the order. The key witness, the investigator, testified in
detail, and was very careful with his words noting that he
was under oath and recalling where he gave the order and
who was present. He acknowledged that he could not
remember the exact words used each time he gave the order.
And, he stated that in accordance with his practice he did
not record the order in writing until after he was asked to
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do so by the trial counsel in anticipation of prosecution.
Nonetheless, with respect to the second order, SSgt Hazen
stated that in ninety-nine percent of the cases in which he
gives a no-contact order he uses the same language and that
under oath he was comfortable saying that he was almost
positive he used the same language in this instance.
Finally, this is not a case where the error deprived
Appellant of presenting his strongest argument to the
members or the military judge. The military judge was on
the right track when he concluded that:
[B]ased on the proffered facts, the court cannot
find as a matter of law the alleged order was
unlawful. The defense motion is essentially an
argument that the evidence is insufficient to
establish either that an order was given or that
it was lawful. These are questions of fact for
the members to determine.
However, in using the sort of reverse negative that lawyers
specially favor, we cannot be sure whether the military
judge found the order lawful, stating that he could not
find that the order“was unlawful”. Similarly, we cannot
know whether “cannot find . . . the alleged order
wasunlawful” means something else.
Further, the military judge appears to have referred
not only the elemental facts to the members to determine,
but also appears to have referred the question of
lawfulness to the members as well. In light of New, this
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United States v. Deisher, No. 04-0555/AF
amounted to plain error. But rather than Appellant being
prejudiced here, he appears to have benefited from an
opportunity for the members, albeit erroneously, as well as
the military judge, to evaluate the lawfulness of the order
he received.
In deferring the issue, the majority’s view is
contradictory and effectively sets apart the issue of
lawfulness as a distinct analytic question, unique unto
itself. On the one hand, the suggestion is that the
question is not really a legal question because this Court
feels it cannot resolve it even with a record as plain as
the one before us. On the other hand, neither is it a
factual question because the Court has found legal error in
the military judge’s submission of the question to the
members. Thus, the majority converts what was a
straightforward legal issue into a jurisprudential hybrid.
I do not see the need for this analytic innovation, which
may produce uncertainty regarding the enforcement of the
most elemental of military traditions: obedience to a
lawful order. Readers of the majority’s opinion might well
wonder whether the Court finds the question of lawfulness
complex. They may wonder what additional facts are
required to address lawfulness. Or, it may seem uncertain
whether an order must be issued three times in order to be
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United States v. Deisher, No. 04-0555/AF
lawful one time. Is there something more a military
policeman should do to ensure he or she has conveyed a
lawful order? Is there something more an infantry platoon
sergeant should do? For the reasons stated, the parties
and the law would be better served were we to answer the
question before the Court at this time. Therefore, I
respectfully dissent.
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