United States v. Chief Warrant Officer Four DANIEL J. ANTONSON

• Court: Army Court of Criminal Appeals
• Decided: December 22, 2010
• Docket: ARMY 20080620
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before JOHNSON, BAIME, and BURTON Appellate Military Judges

UNITED STATES, Appellee v. Chief Warrant Officer Four DANIEL J. ANTONSON United States Army, Appellant

ARMY 20080620

Headquarters, XVIII Airborne Corps and Fort Bragg Patrick J. Parrish, Military Judge (trial) Gary Brockington, Military Judge (DuBay hearing) Colonel Gary A. Loxley, Acting Staff Judge Advocate

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Brad Voorhees, JA; Captain Tiffany K. Dewell, JA (on brief); Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Captain Shay Stanford, JA; Captain Sarah E. Wolf, JA (on supplemental brief); Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Captain Shay Stanford, JA; Captain Sarah E. Wolf, JA (on additional pleading).

For Appellee: Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Lisa L. Gumbs, JA; Major Charles C. Choi, JA (on brief); Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Lisa L. Gumbs, JA (on response to additional pleading).

17 December 2010

--------------------------------- SUMMARY DISPOSITION ---------------------------------

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. §921 [hereinafter UCMJ]. An officer panel sentenced him to a dismissal. The convening authority approved the adjudged sentence.

On 12 November 2009, appellant filed a supplemental brief with this court alleging the following assignment of error:

WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL AND FULL AND FAIR CLEMENCY CONSIDERATION WHERE HIS COMMAND UNLAWFULLY INFLUENCED PROSPECTIVE DEFENSE WITNESSES.

During our review of the case, we granted both appellant’s as well as the government’s motions to attach multiple affidavits with respect to this assignment of error. Appellant’s collective affidavits raised allegations that appellant’s battalion executive officer, Major (MAJ) L had unlawfully influenced prospective defense witnesses. Ultimately, having been unable to resolve the matter under the principles of United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997), we returned the record of trial to The Judge Advocate General to conduct a limited hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). A full development of the material facts was required to determine the veracity of appellant’s allegations and what, if any, effect there was on his court-martial. See United States v. Baldwin, 54 M.J. 308, 311 (C.A.A.F. 2001).

During trial and on appeal, “[t]he defense has the initial burden of producing sufficient evidence to raise unlawful command influence.” United States v. Dugan, 58 M.J. 253, 258 (C.A.A.F. 2003) (quoting United States v. Ayala, 43 M.J. 296, 299 (C.A.A.F. 1995). The threshold is low, “but more than mere allegation or speculation.” United States v. Biagese, 50 M.J. 143, 150 (C.A.A.F. 1999). The quantum of evidence required to raise unlawful command influence is “some evidence.” Id. “[O]nce an issue of unlawful command influence has been raised, the Government must persuade the military judge and the appellate courts beyond a reasonable doubt that there was no unlawful command influence or that the unlawful command influence did not affect the findings and sentence.” Id. at 151.

Having reviewed the DuBay proceedings, we adopt the military judge’s findings of fact and conclusions of law. We find beyond a reasonable doubt that the evidenced gathered and developed at the DuBay hearing disproves the predicate facts on which the allegations of unlawful command influence are based, or, even if the predicate facts are true, they simply do not constitute unlawful command influence. See United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002) (citing Biagese, 50 M.J. at 151). Furthermore, we find beyond a reasonable doubt that none of MAJ L’s actions, statements, or expressions affected the proceedings at trial or post-trial. Id.

We have considered appellant’s other assignment of error as well as those matters personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. Accordingly, the findings of guilty and the sentence are AFFIRMED.

DATE: 17 December 2010

FOR THE COURT:

JOANNE P. TETREAULT ELDRIDGE

Acting Clerk of Court