United States v. Denier

43 M.J. 693, 1995 CCA LEXIS 308, 1995 WL 713219
CourtUnited States Air Force Court of Criminal Appeals
DecidedNovember 9, 1995
DocketACM 31036
StatusPublished
Cited by3 cases

This text of 43 M.J. 693 (United States v. Denier) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Denier, 43 M.J. 693, 1995 CCA LEXIS 308, 1995 WL 713219 (afcca 1995).

Opinion

OPINION OF THE COURT

BECKER, Judge:

Today we address, among other issues, an allegation of unlawful command influence, presented in the context of a conversation between court members allegedly overheard during a trial recess, and the scope of a military judge’s discretion in ruling on a challenge for cause. The command influence [694]*694issue is before us in our Article 661 review of the appellant’s case, and also by way of a petition for new trial referred to us under Article 73, UCMJ.2 We hold the appellant’s allegations are insufficient to raise an issue of unlawful command influence, and reject his other assertions of error. We also deny his petition for new trial.

I. BACKGROUND

A military judge accepted the appellant’s guilty plea to one specification of conduct unbecoming an officer in violation of Article 133, UCMJ.3 A general court-martial composed of officer members then convicted the appellant, contrary to his pleas, of one specification of distributing cocaine in violation of Article 112a, UCMJ.4 His approved sentence is a dismissal, confinement for two years, and forfeiture of $2000 per month for two years.

Appellant was a married emergency room physician at Seymour Johnson Air Force Base, North Carolina. He has prior active duty service as an Army physician. Mrs. G is the young wife of an Air Force enlisted man, Airman First Class G. Appellant saw Mrs. G as a patient, treating her for a variety of medical problems. Appellant used this professional contact as a springboard for a personal relationship, which included drinks at a bar, rides in his sports car, and discussion of a motel room rendezvous. Appellant admitted this unbecoming conduct, which formed the basis for his guilty plea to the Article 133 offense. At the appellant’s request, the military judge informed the court members of his guilty plea before they heard evidence on the contested cocaine distribution charge.

The remaining facts are in dispute. According to Mrs. G, she admitted past use of cocaine during one of her conversations with the appellant. Subsequently, the appellant told Mrs. G that he could supply her with some. Mrs. G told her husband about her relationship with the appellant, including his cocaine offer. Airman G was irate, and reported the matter to the Air Force Office of Special Investigations (AFOSI) at Seymour Johnson. AFOSI agents contacted Mrs. G and she agreed to help them. AFOSI agents monitored a telephone conversation between the appellant and Mrs. G, and set up a “sting” operation in a Seymour Johnson billeting room.

AFOSI installed a video camera (picture only, no sound) in the billeting room. Mrs. G knew there was a camera, but the agents did not tell her where it was. By happenstance, the appellant put several bottles in front of the camera, obscuring the view of the appellant and Mrs. G much of the time. As a result, we never see cocaine produced by either the appellant or Mrs. G. However, while the appellant is out of the room getting ice, we have an unobstructed view of Mrs. G, and she does not take anything from her body or clothing. Upon Mrs. G’s signal that cocaine had been passed, agents entered the room, discovered cocaine spread out on a table, and apprehended the appellant. AFO-SI also seized a razor blade and a straw cut in two pieces from the appellant’s briefcase.

Appellant testified he was the victim of an extortion scheme cooked up by Airman and Mrs. G. According to the appellant, Mrs. G must have secreted the cocaine in her clothes or a body cavity, taken it out while he was out of the billeting room getting ice, and signaled AFOSI agents to enter. Appellant explained he used the razor blade to cut up his own prescription medication into smaller doses, and cut the straw so Mrs. G could play with the pieces. He then described receiving “anonymous” letters — but written in such a way to obviously imply that the author was Airman G — demanding money in exchange for dropping the charges. Appellant’s civilian lawyer submitted these letters to a private forensic consultant, who discovered a hidden, indented writing5 on one letter. [695]*695This hidden writing purported to be the full signature of Airman G.

II. UNLAWFUL COMMAND INFLUENCE

Appellant’s trial lasted six days. On day four, a Mr. Farrell attended the trial as a potential sentencing witness for the appellant. Mr. Farrell is a retired Army major now working in Georgia as a sheriffs officer. Mr. Farrell was the appellant’s commander during the appellant’s prior Army service, and has remained his friend. As a potential witness, Mr. Farrell was not present during the proceedings, but remained in the immediate area of the courtroom.6 By the fourth day of the trial, the members had known of the appellant’s guilty plea to conduct unbecoming an officer for three days, and had been hearing evidence on the contested cocaine distribution charge for most of that time.

About two weeks after the trial, Mr. Farrell sent a letter to the Secretary of the Air Force decrying the results of the trial, and describing a conversation he overheard between two officers he believed were members of the appellant’s “jury.” According to the letter, Mr. Farrell was seated in the stall of a men’s room near the courtroom. He overheard two men talking about the case. The gist of one man’s comments was that, but for the “ ‘fuck up’ at tail hook 7 and the command interest, this guy would get off with a slap on the wrist.” His companion replied, “‘Shit happens, as long as it’s not us.’ ” Mr. Farrell then rose in his stall, saw the men were Air Force lieutenant colonels wearing “Blue [service dress] uniforms.” Both wore aviator wings, and one also wore “jump wings” (i.e., a parachutist badge). Six male lieutenant colonels served on the appellant’s court-martial. Four were aviators, and two of these also wore jump wings. Court-martial participants all wore service dress uniform.

Because of this letter, the military judge convened a posttrial Article 39(a)8 session, according to Rule for Courts-Martial 1102(b)(2). He took testimony from Mr. Farrell and considered, without defense objection, affidavits from all court members. Mr. Farrell repeated under oath the allegations in his letter to the Secretary. In addition, he said one speaker referred to the female trial counsel using a crude, anatomic metaphor. Mr. Farrell said he could not identify any court member as either speaker because he had not seen the speakers’ faces. He explained his failure to bring the conversation to the attention of the court, the appellant, or the defense counsel as the product of his desire to avoid getting anyone in trouble. According to Mr. Farrell, he changed his mind and wrote the Secretary only after learning the trial results, which he considered unjust. Each court member’s affidavit averred that he was “absolutely certain” he never overheard, participated in, or was aware of any such conversation.

In his posttrial ruling, the military judge was skeptical of Mr. Farrell’s testimony. However, he found that Mr.

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Air Force Court of Criminal Appeals, 2014
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United States v. Denier
47 M.J. 253 (Court of Appeals for the Armed Forces, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
43 M.J. 693, 1995 CCA LEXIS 308, 1995 WL 713219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-denier-afcca-1995.