United States v. Hilow

29 M.J. 641, 1989 CMR LEXIS 837, 1989 WL 120546

• Court: U.S. Army Court of Military Review
• Decided: October 12, 1989
• Docket: ACMR 8601499
• Status: Published

Opinions

OPINION OF THE COURT ON RECONSIDERATION¹

MYERS, Senior Judge:

Pursuant to his pleas, appellant was convicted by a military judge sitting as a general court-martial of two specifications of wrongful use of marijuana in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (Supp. IV 1986) [hereinafter UCMJ]. His sentence to a bad-conduct discharge, confinement for four months, total forfeitures, and reduction to Private El' was approved by the convening authority.

Appellant alleges that he was denied his right to a fair and impartial sentence proceeding because the nomination and selection of the members detailed to his court-martial were improper.² In support of that assertion, appellant submitted the affidavit of Captain (CPT) David Fierst (attached hereto as Appendix 1). CPT Fierst, then the division deputy adjutant general, alleged, inter alia, that he was directed by members of the staff judge advocate’s office to “select nominees [for court-martial panels] who were commanders and supporters of a command policy of hard discipline.”

Based on appellant’s allegations, a limited hearing in accordance with United States v. DuBay, 37 C.M.R. 411 (C.M.A.1967), was ordered.³ The hearing judge found that there was no evidence to support CPT Fierst’s allegation that “the [staff judge advocate] wanted [him] to select nominees who were commanders and supporters of a command policy of hard discipline.” The judge found, however, that CPT Fierst himself did select nominees whom he perceived to fit this criteria. CPT Fierst submitted a list of thirty persons to the staff judge advocate. The latter combined that list with lists of nominees from two subordinate jurisdictions and submitted the combined list, containing forty-seven names, to the convening authority. In addition, the staff judge advocate provided an “alpha roster” containing the names of all military personnel in the jurisdiction. Of the thirty people selected by the convening authority, nineteen were from CPT Fierst’s list. The convening authority wrote in two names that were not on the list submitted to him, although it is not clear whether he selected those names from the “alpha roster.” In the appellant’s case, the convening order contained the names of six people selected from CPT Fierst’s list. If the case were tried by officers alone, three of the seven members would have been from CPT Fierst’s list. Had the court included officers and enlisted members, four of the seven members would have been from CPT Fierst’s list. The military judge further found that the convening authority received correct advice from the staff judge advocate and utilized the proper criteria pursuant to Article 25(d)(2), UCMJ, 10 U.S.C. § 825(d)(2),⁴ in making his selections. (See the military judge’s Findings of Fact, attached hereto as Appendix 2).

I

Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial [hereinafter R.C.M.] 912(b)(1) requires that a motion challenging the selection of members be made “[bjefore the examination of members ... or at the next session after a party discovered or could have discovered by the exercise of diligence, the grounds therefor, whichever is earlier.” Waiver is predicated upon a failure to make a timely motion. R.C.M. 912(b)(3). It is clear in this case that CPT Fierst’s procedure for selecting nominees was discovered after trial and only after CPT Fierst became concerned that “military justice was not evenly dealt with” in the command and voluntarily came forward. Under those circumstances, we find that the challenged selection procedure had not been discovered nor could it reasonably have been discovered by the exercise of diligence prior to the conclusion of appellant’s trial. United States v. Smith, 27 M.J. 242 (C.M.A.1988). Appellant raised the issue in his post-trial submission to the convening authority, but his request for relief was denied. Thus, the issue was preserved for appeal.

II

Selection of court members designed or intended to “achieve a particular result as to findings or sentence” is clearly prohibited. Smith, 27 M.J. at 250 (quoting United States v. McClain, 22 M.J. 124, 132 (C.M.A.1986)). It is undisputed that the procedure employed by CPT Fierst in nominating “supporters of a command policy of hard discipline” violates the criteria applicable to a convening authority when selecting members for a court-martial. See McClain, 22 M.J. at 132 (selection of court members who will adjudge heavy sentences is not a basis for selection authorized by Article 25(d)(2), UCMJ). However, CPT Fierst was not the convening authority and, in this case, the convening authority properly applied Article 25, UCMJ, criteria when selecting the members even though, unbeknown to him, he was using a “tainted” list. Previous cases in this area have involved the use or imputed use of improper criteria by the convening authority or the staff judge advocate, or both.⁵ However, we have found no cases which address the question whether an attempt to “stack” the court by a junior subordinate will taint the convening authority’s selection of court members when the convening authority, acting upon correct advice from the staff judge advocate, applies the proper criteria in his selection. Under the circumstances of this case, we find that CPT Fierst’s attempt to “stack” the court did not invalidate the convening authority’s selection.

Appellant argues that the convening authority must, of necessity, rely on the recommendations of his subordinates when selecting court members and that based on McClain, any errors or improprieties would, ipso facto, carry over to and infect the actions of the convening authority. We agree that the incorrect advice of the staff judge advocate⁶ or the actions of the prosecutorial personnel of the staff judge advocate’s office⁷ contaminate the actions of the convening authority. However, no court has created a per se rule which would impute to the convening authority the improper motives or actions of anyone farther removed from the convening authority than the personnel of the staff judge advocate’s office. When determining whether a subordinate’s conduct taints a selection process, the facts of each case must be examined to ascertain whether the convening authority did in fact utilize improper criteria or apply faulty advice in the selection of court members. Cf. McClain, 22 M.J. at 133 (Cox, J., concurring in result) (absent evidence to the contrary, the court assumed the convening authority followed the improper advice of the staff judge advocate); Daigle, 1 M.J. at 141 (the Court of Military Appeals reviewed the facts to determine whether the convening authority had received advice regarding the proper criteria for selecting court members).

In Smith and McClain improper criteria were deliberately utilized by the convening authority or the staff judge advocate which tainted the entire membership of the court. However, in the instant ease, neither the convening authority nor the staff judge advocate acted with improper intent in selecting court members or were aware of the improprieties of CPT Fierst.⁸ CPT Fierst routed his list of nominees through the command sergeant major and the assistant division commander before forwarding it to the staff judge advocate for review and consolidation with the two other lists. Those officials reviewed the list, commented thereon and, having no knowledge of CPT Fierst’s actions and noticing nothing facially improper, processed the list in the normal course of their responsibilities. Thus, contrary to the situations in Smith, McClain, et al., CPT Fierst’s list was filtered through three levels of command and staff review before reaching the convening authority, the final review having been conducted by the staff judge advocate, who, as we have already noted, correctly advised him in the matter. The convening authority himself saw nothing amiss. The fact that he wrote in the names of two people not on the list clearly shows that he did not blindly “rubber-stamp” the “tainted” list presented to him but instead, using the staff work of his subordinates merely as a guide, exercised his own discretion and utilized his own personal knowledge of the members of his command in making his selections, as he is empowered and, indeed, required to do under Article 25, UCMJ.

Appellant argues that “we [should be] concerned with intent, rather than impact.” McClain, 22 M.J. at 131. We agree. We are deeply concerned with intent — the intent of the convening authority and the staff judge advocate. In this case, as hereinbefore discussed, the convening authority and the staff judge advocate both acted properly and in good faith. We find, therefore, that any taint attaching to CPT Fierst’s list was dissipated by the subsequent selection process and that the panel to which appellant’s case was referred was properly selected in compliance with Article 25, UCMJ.

We have considered the other errors asserted by the appellant and find them to be without merit.

The findings- of guilty and the sentence are affirmed.

Judges GILLEY, CARMICHAEL and GIUNTINI concur.⁹

APPENDIX 1

SWORN STATEMENT Fcr u** of lbl* form, ••• AR 190 — 45j th« ptaponanl agancy 1* O f f i c« of Th* Papviy Chlaf of Sioff for Porsonnol.

LOCATION GARLSTEDT FRG FILE NUMBER

LAST NAME. FIRST NAME. MIOOLE NAME FIERST/ .DAVID.. J .______________ SOCIAL SECURITY NUMBER. 304-62-2618 CRADE/STATUS QPT/03

ORGANIZATION OR ADDRESS HHC/ 2AÜ (FWD) APO NEW YORK 09355-

i, CRT DAVID J. FIERST WANT TO MAKE THE FOLLOWING STATEMENT UNDER OATH:

j. was nne ueputy Adjutant General for the 2nd Armored Division (FWD) at Garlstedt, FRG from about 15 October 1985 until October 1986. During July 1986, I was involved with the selection of court-martial panel members for upcoming court-martial panels for the 2nd Armored Division(FWD). I recall seeing LTC Dodson one day in the hallway of the Headquarters building where the subject of selecting court-martial panel members came up. At that time I was with Major Berger, AG of the 2nd Armored Division. It was explained to us by LTC Dodson how this would be accomplished. LTC Dodson wanted the Adjutant General's Office to prepare a listing or roster of possible court member nominees. Major Berger indicated to me thac this would be my project.

As I worked on preparing this list, I would go see or call either LTC Dodson or Major Lause, the Deputy Staff Judge Advocate for further guidance. In all, I would say that the subject of criteria for selecting court members came up between myself and the SJA's Office three or four times. On one occasion, I went to see Major Lause in his office to discuss the criteria for selection and this discussion was conducted behind closed doors. It became clear to me, although never specifically stated, the SJA wanted me to select nominees who were commanders and supporters of a command policy of hard discipline. I ultimately selected nominees who were commanders and/or who I believed were hard liners for discipline. I nominated a few First Lieutenants on this list, but I was told by the Assistant Division Commander to remove them as they lacked experience, according to the criteria given to me by the SJA and DSJA. I never nominated a soldier vrfio was less than a Sergeant First Class(E-7).

This community is a comparitivelv snail community with only about 350 officers. Therefore, I was rather familiar with the reputation and attitudes of the commanders and officers within the command. X was told that when the Convening Authority approved the nominees I needed to ensure that a roster of all assigned soldiers was available for the Convening Authority to choose from. It was explained to me that by providing this list of all soldiers, it would give the appearance that no particular group was excluded, or that no one criteria was used for selection, ie., rank or commanders.

Throughout this process, I had the perception that I was not to discuss this natter with anyone, and that what I was doing was somehow secretive, or not totally above board. I became even more concerned when I heard about 1LT Joel Wall's court-martial, and the feeling that I had that he was getting railroaded by not having a fair and impartial jury hear his case. I sensed from conversations around the command that he would not get a fair trial because he was an

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APPENDIX 2

FINDINGS OF FACT

1. During July 1986, the Staff Judge Advocate (SJA) for 2d Armored Division (Forward), requested the Adjutant General (AG) provide a list of court member nominees to be used by the convening authority (CA) in selecting new court member panels (See AE XII). CPT Fierst, the Assistant AG, was the action officer for this task.

2. The SJA and Deputy Staff Judge Advocate (DSJA) gave CPT Fierst both written and oral guidance on how this list was to be created. The advice given to CPT Fierst by both the SJA and DSJA comported with Art. 25(d)(2), UCMJ. This advice specifically informed CPT Fierst that he should recommend people who were best qualified for the duty by reason of age, education, training experience, length of service, and judicial temperament. AE XIII is part of the written advice used by CPT Fierst. Neither the SJA, DSJA, or anyone else specifically directed or requested that CPT Fierst nominate people who were commanders or hard-liners on military justice. The SJA, in his oral advice to CPT Fierst, did say that commanders were not excluded from nomination. The SJA made this comment so that CPT Fierst would understand that this list of nominees was different from selecting people for a duty roster. CPT Fierst was also requested by either the SJA or the DSJA to provide a roster of all persons assigned to the 2d AD (FWD) (an Alpha roster). This Alpha roster was to be used in case the CA wanted to consider a person for court-martial duty who was not listed as a nominee. In discussing the Alpha roster, the DSJA told CPT Fierst that this roster would be used to insure the selection process was conducted in a manner which gives the appearance of fairness. The intent of this comment was that this Alpha roster would be available in case the CA wanted to consider someone other than the listed nominees for court-martial duty. However, CPT Fierst construed the comment to mean that the Alpha roster was merely to be used so that an unfair process would give a false fair appearance.

3. Despite receiving correct advice, CPT Fierst felt that he was supposed to select commanders or persons who would be hard-liners. CPT Fierst reached this conclusion because he felt that the language in Art. 25(d)(2), UCMJ really means that. CPT Fierst created the list of nominees for the 2nd AD (FWD) (AEVIII), selecting people who were either commanders or who he perceived were supporters of hard discipline.

4. The list of nominees was then routed through the Command Sergeant Major, CSM Toomler and the Assistant Division Commander (ADC), COL Baucum. The CSM told CPT Fierst that two people on the list, 1SG Murphy and CSM Hutton, were not team players. However, both names stayed on the list. The ADC told CPT Fierst that he felt the lieutenants on the list lacked the requisite experience to serve as court members. (See AE XIV). However, the lieutenants remained on the list and COL Baucum’s view on lieutenants was never presented to the CA.

5. Once the list of nominees (AE XIII) was presented to the SJA office, it was incorporated into a larger list of nominees comprising all units under the CA’s jurisdiction. AE IX is the complete list of nominees prepared by the SJA office. 47 names are on this list. On or about 6 August 1986, the SJA presented to the CA AE IX and AE X along with an Alpha roster so that the CA could select new court member panels. The oral and written advice given to the CA at that time by the SJA comported with the criteria found in Art. 25(d)(2), UCMJ.

6. The CA then selected the persons found on AE IX who have a check placed by their name for duty as court members. The CA wrote in the names of two (2) persons who were not listed on AE IX to be court members. The CA selected persons who, in his opinion, best met the criteria set out in Art. 25(d)(2), UCMJ. The CA did not intentionally select persons merely because they were commanders. The CA did not purposely select persons because of any perception on his part that these people were hard-liners.

7. Of the 30 persons selected by the CA for court-martial duty, 19 were people who had been on the list created by CPT Fierst. The list submitted by CPT Fierst contained 30 names. In the case of U.S. v. Hilow, the convening order (AE XI) shows 6 people who were on CPT Fierst’s list. If the case were tried by officers alone, 3 of the 7 members would be from CPT Fierst’s list. If the case was tried by officers and enlisted, 4 of the 7 members would be from CPT Fierst’s list.

8. There was no evidence to suggest that 2d AD (FWD) was experiencing any unusual military justice problems or any unusual problems with court-martial results. There was insufficient evidence to suggest that the CA automatically excluded soldiers of any particular rank from duty as court members.

9. In summary, CPT Fierst got the correct advice from the SJA and DSJA, yet he misconstrued this advice and felt his duty was to select commanders or hard-liners. The list submitted by him consisted of people who were either commanders or people he considered to be hard-liners. The CA received and applied the correct advice pursuant to Art. 25(d)(2), UCMJ for court member selection. His intent, when selecting court members was proper and comported fully with Art 25, UCMJ. The CA used a list of nominees to make his selection in which 30 of the 47 names came from CPT Fierst. Of the 30 people selected by the CA, 19 came from CPT Fierst’s list. Of the 7 people who would be on any court member panel for PV2 Hilow’s case, either 4 or 3 would be from CPT Fierst’s list, depending on the type court selected. (WCU)

10. Concerning the 5 lettered questions posed by the Army Court of Military Review in its Memorandum Opinion dated 16 December 1987 in U.S. v. Hilow, the following answers are given:

a. Yes. CPT Fierst, the assistant AG, prepared a list of court member nominees.

b. No. Neither the SJA, DSJA, or anyone else told CPT Fierst to select nominees who were commanders and supporters of a command policy of hard discipline. CPT Fierst admitted no one told him this. However, CPT Fierst believed he was supposed to select those types of nominees and did so.

c. No. The ADC made the comment but the Lieutenants remained on the list.

d. A qualified yes. A statement like this was made by the DSJA to CPT Fierst, however, it was intended to mean that by using the Alpha roster the selection process would be fair both in practice and in appearance. CPT Fierst interpreted the comment to mean that the Alpha roster was only to be used to make an unfair selection process appear fair.

e. Yes. 18 of the 30 court members selected by the CA came from CPT Fierst’s list. 6 of the court members on PY2 Hi-low’s convening order were from CPT Fierst’s list. If a court with only officer members had sat, 3 of the 7 members would have been from the list. If a court with officers and enlisted had sat, 4 of the 7 members would have been from the list.

s/ William L. Wallis

WILLIAM L. WALLIS

MAJ, JA

Military Judge

1 . United States v. Hilow, 27 M.J. 846 (A.C.M.R.1989), vacated and reh’g en banc ordered, publication withdrawn (A.C.M.R. 3 Feb. 1989) (order of the court en banc) (unpub.).

2 . Although allegations of unlawful command influence were originally raised in this case, our review of the record does not reveal any evidence to support those allegations.

3 . United States v. Hilow, ACMR 8601499 (A.C.M.R. 16 December 1987) (unpub.).

4 . Article 25(d)(2), UCMJ, requires the convening authority to detail as members of courts-martial such members of the armed forces as, in his opinion, “are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament."

5 . See McClain, 22 M.J. at 132 (improper advice provided by the staff judge advocate was imputed to the convening authority where action of the convening authority reflected reliance upon the advice); United States v. Greene, 43 C.M.R. 72 (C.M.A.1970) (improper selection found where staff judge advocate had recommended only senior officers be selected and only senior officers were selected); United States v. Hedges, 29 C.M.R. 458 (C.M.A.1960) (where seven of nine members of the court had primary duty assignments involving crime prevention, detection, or control, the appearance of a handpicked court favoring the government was so great as to require reversal).

6 . See McClain, 22 M.J. at 124; Greene, 43 C.M.R. at 78 (C.M.A.1960).

7 . Smith, 27 M.J. at 242; United States v. Daigle, 1 M.J. 139 (C.M.A.1975).

8 . Since the staff judge advocate is the convening authority’s principal legal advisor and the convening authority must, by law, receive legal advice from his staff judge advocate before referring a case to a general court-martial, Article 34, UCMJ, 10 U.S.C. § 834, it logically follows that any errors or improprieties on the part of the staff judge advocate will carry over to and taint the action of the convening authority. Had the staff judge advocate made nominations and advised the convening authority with an intent to achieve a certain result, that is, court members who are hard-liners, that improper motive would have been imputed to the convening authority regardless of whether he had applied the proper selection criteria under Article 25, UCMJ. McClain, 22 M.J. at 132.