This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________
UNITED STATES Appellee v. John C. RIESBECK, Boatswain’s Mate Second Class United States Coast Guard, Appellant No. 17-0208 Crim. App. No. 1374 Argued October 25, 2017—January 23, 2018 Military Judge: Michael E. Tousley (trial); Gary E. Felicetti (DuBay hearing) For Appellant: John Smith, Esq. (argued); Lieutenant Phil- lip A. Jones (on brief). For Appellee: Lieutenant Commander Tereza Z. Ohley (ar- gued); Stephen P. McCleary, Esq. (on brief). Judge RYAN delivered the opinion of the Court, in which Chief Judge STUCKY, Judges OHLSON and SPARKS, and Senior Judge ERDMANN, joined. _______________
Judge RYAN delivered the opinion of the Court.
Following voir dire and challenges, the seven-member panel that convicted and sentenced Appellant was composed of five women, four of whom were victim advocates—persons trained to provide support and counseling to victims of rape and sexual assault—and two men. The military judge hold- ing a post-trial hearing on the composition of Appellant’s panel1 concluded that: Given the intense external pressures [regarding sexual assault cases], and lack of any other expla- nation, the most likely reason [for the selections made by the various people involved in the pro-
1 After remand from this Court, United States v. Riesbeck, 74 M.J. 176 (C.A.A.F. 2014) (summary disposition), a hearing was ordered in accordance with United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). United States v. Riesbeck, Dkt. No. 1374, Order for a DuBay Hr’g (C.G. Ct. Crim. App. Jan. 20, 2015). United States v. Riesbeck, No. 17-0208/CG Opinion of the Court
cess] is conscious or unconscious decisions . . . that it was very important to have a large number of women on the court.” As detailed more fully below, the member selection pro- cess in this case utilized gender as an important selection criterion. There is nothing in Article 25, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 825(d)(2) (2012),2 that permits selecting members to maximize the presence of a particular gender (or any other non-Article 25, UCMJ, crite- ria) serving on a court-martial.3 See Article 25, UCMJ; Unit- ed States v. Smith, 27 M.J. 242, 250 (C.M.A. 1988) (rejecting intentional selection of women panel members in sex offense case with a female victim and male defendant); cf. United States v. McClain, 22 M.J. 124, 131 (C.M.A. 1986). Moreover, this case is readily distinguishable from both the dicta in Smith, 27 M.J. at 249 (suggesting that race and gender may be taken into account to create a panel more representative of the accused’s race or gender), and United States v. Lewis, 46 M.J. 338, 342 (C.A.A.F. 1997) (holding that court stacking is not raised by a statistically anomalous number of women alone). Any suggestion that the selections in this case were made to promote inclusiveness, ensure a representative panel, or for an otherwise benign purpose is specious. See United States v. Riesbeck, Dkt. No. 1374, 2016 CCA LEXIS 744, at *6–7 (C.G. Ct. Crim. App. Nov. 30,
2 Article 25(d)(2), UCMJ, states when convening a court- martial, the convening authority “shall detail as members thereof such members of the armed forces as, in his opinion, are best qual- ified for the duty by reason of age, education, training, experienc- es, length of service, and judicial temperament.” 3 This Court granted Appellant’s petition on the following is- sues: I. Whether members of Appellant’s court-martial were properly selected. II. Whether Appellant was deprived of a fair trial, or the appearance of a fair trial, where a majority of the panel members were former victim advocates and the military judge denied a challenge for cause against one of them. This Court need not reach Issue II in light of the resolution of Issue I.
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2016). Where selection of members on an impermissible basis is raised by the evidence, the government needs to present af- firmative evidence of benign intent beyond a reasonable doubt, United States v. Upshaw, 49 M.J. 111, 113 (C.A.A.F. 1998) (citing Lewis, 46 M.J. at 340−41; Smith, 27 M.J. at 249). If not, the ready inference and legal consequence is that the improper selection was made to affect the result, a form of unlawful command influence. Article 37, UCMJ, 10 U.S.C. § 837 (2012); United States v. Hilow, 32 M.J. 439, 441−42 (C.M.A. 1991). In this case, the Government pre- sented no evidence of benign intent at the DuBay hearing, and we hold that those involved in the selection process be- lieved court stacking based on gender would influence the result of Appellant’s court-martial. Further, the Government has not established that the error was harmless beyond a reasonable doubt. United States v. Bartlett, 66 M.J. 426, 430 (C.A.A.F. 2008). The decision of the United States Coast Guard Court of Criminal Appeals (CGCCA) is reversed. I. Facts and Procedural History
The underlying facts leading to the charges in this sexual assault case are not directly relevant to the issues before us.4 We focus instead on the panel selected and the events surrounding the selection of members to sit on Appellant’s court-martial panel. A. Initial Procedural History
Appellant chose to be tried by a panel including enlisted members. Ten members were ultimately detailed to sit as Appellant’s court-martial panel. Seven of these members were women. Thus, although the court-martial panel for this case was selected from a roster of officers that was only twenty percent female and a pool of enlisted personnel that was only thirteen percent female, the panel selected for Ap-
4 A general court-martial composed of officer and enlisted members convicted Appellant, contrary to his pleas, of one specifi- cation of making a false official statement, one specification of rape by force, and one specification of communicating indecent language in violation of Articles 107, 120, and 134, UCMJ, 10 U.S.C. §§ 907, 920, 934 (2012).
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pellant’s court-martial was seventy percent female. Five of the women were victim advocates. Following voir dire and Appellant’s challenges, the panel consisted of seven mem- bers, five of whom were women. Four of those women were victim advocates.5 Subsequently, having obtained the con- vening authority’s member-selection materials, Appellant argued, based on those materials, that there was no “con- ceivable, rational or logical reason” for seven of ten members to be women, five of whom were victim advocates, and moved to strike the female members as improperly selected on the basis of gender. The military judge denied the motion as untimely while blithely asserting the issues could be worked out on appeal rather than actually investigating the allegation.6 Appellant was convicted and sentenced to three months of confinement, a reduction to E-2, and a bad- conduct discharge. On his initial appeal to the CGCCA, Appellant asserted, inter alia, that he was deprived of his right to a fair trial by an impartial panel as a result of improper member selection. United States v. Riesbeck, Dkt. No. 1374, 2014 CCA LEXIS 946, at *2 (C.G. Ct. Crim. App. Aug. 5, 2014) (unpublished). Though he had raised the issue at trial, the CGCCA held that Appellant waived his objection to improper member se- lection and affirmed the findings and sentence. Id. at *10– 11, *18. This Court concluded that the objection to member selec-
5 The military judge denied the challenge for cause against LCDR KO, another one of the women, who had experience coun- seling a victim of sexual assault. Appellant exercised his peremp- tory challenge against her. 6 The fact that this case with these facts is returned to us for a
second time, rather than attended to at trial, at the DuBay hear- ing, or by the CGCCA, is a stain on the military justice system. The duty to protect servicemembers against unlawful command influence is not ours alone: “Military judges must continue to ful- fill their essential role as the ‘sentinel’ of the military justice sys- tem in identifying and addressing instances of unlawful command influence. Moreover, judges on the service Courts of Criminal Ap- peals must also appropriately address unlawful command influ- ence whenever they encounter it in specific cases.” United States v. Boyce, 76 M.J. 242, 253 n.9 (C.A.A.F. 2017) (citations omitted).
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tion was not waived, relying on Rule for Courts-Martial (R.C.M.) 912(b)(3), which provides an exception to the re- quirement that a timely motion be made where an objection is based on an allegation that the convening authority se- lected members for reasons other than those listed in Article 25, UCMJ. Riesbeck, 74 M.J. at 176; see also R.C.M. 502(a)(1). We also noted that improper member selection can constitute unlawful command influence, which cannot be waived. Riesbeck, 74 M.J. at 176; United States v. Baldwin, 54 M.J. 308, 310 n.2 (C.A.A.F. 2001). We vacated the CGCCA decision, granted the issue: “Was Appellant de- prived of a fair trial by an impartial panel?,” and remanded the case for further proceedings. Riesbeck, 74 M.J. at 176. On remand, the CGCCA ordered a post-trial hearing in accordance with DuBay, 17 C.M.A. 411, 37 C.M.R. 411, to receive testimony and evidence regarding the composition of Appellant’s court-martial panel. United States v. Riesbeck, Dkt. No. 1374, Order for a DuBay Hr’g (C. G. Ct. Crim. App. Jan. 20, 2015). B. Findings of the DuBay Military Judge
The detailed factual background and intricacies behind the member selection process in this case (among other things) are set forth in detail in Appendix A (DuBay Hear- ing: Final Findings of Fact) and discussed at some length in the CGCCA’s opinion. Riesbeck, 2016 CCA LEXIS 744, at *3, *8−13. Rather than marching through extraneous details, we focus on the discrete findings salient to the decisional is- sues in this case, all of which are supported by the record. At the time of Appellant’s court-martial, “senior Coast Guard and Department of Defense leadership faced intense external pressure to do more about preventing and respond- ing to sexual assaults.” Coast Guard “policies and initia- tives” emerged as a result of this external pressure, includ- ing “a combat-like campaign in the ‘righteous’ cause of fighting sexual assault.” “Selection of the court members in this case occurred within this overall environment.” The process of selecting the members for Appellant’s court-martial included four different individuals: VADM Brown, RADM Colvin, RADM Ryan, and ADM Zukunft. The digests provided to the first three included the Article 25,
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UCMJ, criteria along with rosters which listed, among other information, the full names and gender of each servicemember eligible to be placed on the panel.7 They were advised to select individuals using the roster and the Article 25, UCMJ, criteria. Roster information, “such as gender, that did not explicitly align with Article 25 was, at least, given co-equal status with Article 25.” VADM Brown, the Coast Guard Pacific Area & Defense Forces West (PACAREA) commander, was “aware that the bulk of pending cases involved sexual assaults and con- sciously or unconsciously desired to have a significant num- ber of women on the panel.” VADM Brown chose ten officers, six of whom were women, for the convening order in this case. Women made up twenty percent of the roster of eligible officers used by VADM Brown. No identified selection crite- ria distinguished the chosen women. His “general practice of seeking a range of ranks on a court-martial panel should not have resulted in a court composed of 60% women.” All ten names selected appeared on the initial convening order. After Appellant requested enlisted representation, the then acting convening authority,8 RADM Colvin, selected ten enlisted members for the panel—four of these members were women.9 He knew one of the female selectees fairly well. The most obvious explanation for why he “selected three additional women is some desire to have a significant number of women on the panel—perhaps while thinking of obtaining a good mix.” RADM Colvin’s past practice “had been to seek a ‘mix of educational backgrounds’ while paying
7 PACAREA used a multi-step process “not apparent from the Digest.” (Emphasis omitted.) The convening authority selects members from the roster, in accordance with a digest provided by the SJA, and rank orders them. The legal staff then contacts se- lected members to determine availability. If unavailable, the name is removed from the draft convening order and the next highest ranked person goes on the draft convening order. The draft order then goes to the convening authority for final approval. 8 The question of whether RADM Colvin had the authority to act as the convening authority is not before us. 9 The roster of eligible enlisted used by RADM Colvin was only thirteen percent female.
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particular attention to length of service.” However, no crite- ria other than gender distinguished the chosen women. Several of the members selected by RADM Colvin were subsequently deemed unavailable, and the SJA requested that RADM Ryan select an additional eight enlisted members for Appellant’s court-martial panel. Despite drawing from the same roster as RADM Colvin, which was thirteen percent female, three of the eight members selected by RADM Ryan were women. RADM Ryan then intentionally rank-ordered the three women selected as her first, second, and fourth choices out of the eight enlisted members although she “did not know any of the enlisted members selected.” The “most obvious explanation for this amendment to the court being 37.5% female is some desire, either conscious or unconscious, to have a significant number of women on the panel.” ADM Zukunft took command of PACAREA and the SJA presented ADM Zukunft with various amendments to the convening order which essentially ratified the selections of RADM Ryan and VADM Brown, after accounting for per- sonnel deemed unavailable. At the end of this complex selec- tion process, the enlisted portion of the panel detailed to Ap- pellant’s court-martial was seventy-five percent female and the officer portion was sixty-seven percent female. The digest provided to ADM Zukunft did not contain gender information, so it is unlikely that ADM Zukunft him- self was aware of the gender composition of the panel. Nor did the digest contain a description of the Article 25, UCMJ, selection criteria. Moreover, ADM Zukunft’s stipulated tes- timony revealed that he was not aware of the requirements of Article 25, UCMJ, and believed that member selection was not a best qualified process, but did look for diversity when selecting members. The SJA was “aware of the high percentage of females on the panel but ha[d] no discussions with any of the [conven- ing authorities] about it.” While the DuBay military judge determined that there was no coordinated action between VADM Brown, RADM Colvin, RADM Ryan, and ADM Zukunft to maximize the number of women selected, he also found that it was “no coincidence that every relevant deci-
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sion [made] by [VADM Brown, RADM Colvin, and RADM Ryan] resulted in an unusually large number of females be- ing selected [to sit on the panel] and/or being highly ranked for future selection.” Based on the foregoing information, the DuBay military judge concluded that “[g]iven the intense external pressures, and lack of any other explanation, the most likely reason for the selections made by [VADM Brown, RADM Colvin, and RADM Ryan] were conscious or unconscious decisions . . . that it was very important to have a large number of women on the court.” At each phase of member selection, the parties could not identify any other subgroup that was over repre- sented to the extent of women. The military judge also found at each step that no selection criteria had been identified which could explain the selection of so many women, or “dis- tinguish[]” the members selected on any basis other than gender. The DuBay military judge’s ultimate conclusion was that ADM Zukunft himself did not make any gender-based deci- sions, but rather implemented previous decisions by others: “Absent personal knowledge of the listed members, which he does not appear to have, [he] could not have ‘packed’ the court with women even if he desired to do so.” C. The Second Appeal
Following the DuBay hearing, Appellant raised several assignments of error at the CGCCA. Riesbeck, 2016 CCA LEXIS 744. Appellant asserted, inter alia, that the conven- ing authority disregarded the member selection factors pre- sent in Article 25(d)(2), UCMJ, and selected a panel with a disproportionate number of women. Id. at *3. The CGCCA again affirmed the findings and the sen- tence. Id. at *24. As relevant to the granted issue, the CGCCA concluded that there was no evidence that the con- vening authorities or their subordinates were “motivated by the intent to achieve a particular result as to findings or sentence.” Id. at *10. In addition, the CGCCA, relying on Lewis, 46 M.J. 338, held that Appellant failed to raise suffi- cient evidence of court stacking because “court stacking is not raised by an anomalous number of women on a single court-martial panel, in the absence of evidence of a pattern
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or of improper motive or other impropriety.” Id. at *14. In addition, the CGCCA concluded that detailing members based on gender fosters “inclusiveness of ‘all segments of the military community’ ” and is benign. Id. at *14−15 (quoting United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004)). II. Discussion
We disagree with the legal conclusions of both the CGCCA and the DuBay hearing military judge. As a thresh- old matter, gender is not an Article 25, UCMJ, factor, and selection on the basis of gender is generally prohibited. Unit- ed States v. Gooch, 69 M.J. 353, 358 (C.A.A.F. 2011) (citing Dowty, 60 M.J. at 170–71); Lewis, 46 M.J. at 341; United States v. Witham, 44 M.J. 664, 666 (N-M. Crim. Ct. App. 1996) (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)). To the extent there is an exception to provide for a good faith effort to ensure a “representative” or “inclusive” panel, Smith, 27 M.J. at 249, the DuBay military judge found no such “benign” motive, and it is clear from his find- ings of fact that it is pure sophistry to pretend that such a motive exists in this case. As we stated long ago, even reasonable doubt concerning the use of improper panel selection criteria will not be toler- ated in the military justice system. United States v. Greene, 20 C.M.A. 232, 238–39, 43 C.M.R. 72, 78−79 (1970). Based on the facts as found at the DuBay hearing, Appellant has raised the issue of improper member selection on the basis of gender. The Government has failed to prove at all, let alone beyond a reasonable doubt, that the improper member selec- tion process was not motivated by gender-based court stack- ing. Additionally, the Government has not met its burden of convincing this Court beyond a reasonable doubt that Appel- lant received a fair trial from an impartial panel, free from the effects of unlawful command influence. United States v. Lewis, 63 M.J. 405, 414−15 (C.A.A.F. 2006). A. Member Selection and Article 25, UCMJ
This Court reviews the selection of court-martial mem- bers for error de novo. Bartlett, 66 M.J. at 427 (citations omitted). Based on the military judge’s findings of fact from the DuBay hearing, which, as the CGCCA noted, Riesbeck, 2016 CCA LEXIS 744, at *24, are supported by the record,
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we are convinced that the member selection in this case was based in no small part on gender, which is error. Dowty, 60 M.J. at 171; Lewis, 46 M.J. at 341. Courts-martial are not subject to the jury trial require- ments of the Sixth Amendment, and, therefore, military members are not afforded a trial in front of a representative cross section of the military community. McClain, 22 M.J. at 128. Indeed, in the military justice system, the commanding officer refers the charges to a court-martial that he or she has convened, by selecting members and detailing them to it. Articles 22 and 23, UCMJ, 10 U.S.C. §§ 822, 823 (2012); R.C.M. 501−503. “Under these circumstances, it is incum- bent upon this Court to scrutinize carefully any deviations from the protections designed to provide an accused servicemember with a properly constituted panel.” Upshaw, 49 M.J. at 116 (Effron, J., dissenting). In part, it is for this reason that that even reasonable doubt concerning the use of impermissible selection criteria for members cannot be tol- erated. United States v. Bertie, 50 M.J. 489, 493 (C.A.A.F. 1999) (citing Greene, 20 C.M.A. at 238, 43 C.M.R. at 78). A military defendant has a right both to “members who are fair and impartial.” United States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F. 2000) (internal quotation marks omitted) (quoting United States v. Roland, 50 M.J. 66, 68 (C.A.A.F. 1999)), and the appearance of an impartial panel, United States v. Ward, 74 M.J. 225, 228−29 (C.A.A.F. 2015). In large measure, Article 25, UCMJ, seeks to effectuate that end, McClain, 22 M.J. at 128−29, and represents Congress’s criteria for panel members sitting on a court-martial. A con- vening authority has significant discretion when selecting panel members based on the factors outlined in Article 25(d)(2), UCMJ. United States v. Smith, 37 M.J. 773, 776 (A.C.M.R. 1993) (citing United States v. Crawford, 15 C.M.A. 31, 35 C.M.R. 3 (1964)). However, this discretion “is not un- fettered, particularly when the convening authority reaches beyond the statutory criteria in making his selection.” Id. (emphasis added). That is what happened in this case. Neither race nor gender is included among Article 25, UCMJ, factors, and, to be sure, there are minefields of con- stitutional proportion aplenty lurking to upset selections based on gender (or race). Cf. J.E.B., 511 U.S. at 130−31
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(Equal Protection Clause prohibits the use of peremptory challenge against jury member based on gender); Batson v. Kentucky, 476 U.S. 79, 85−86 (1986) (Equal Protection Clause prohibits the use of peremptory challenge against jury member based on race); Lewis, 46 M.J. at 341. Because the military justice system works differently, and members are selected by the convening authority, we have permitted a convening authority to depart from the factors present in Article 25, UCMJ, in one limited circumstance: when seek- ing in good faith to make the panel more representative of the accused’s race or gender. Thus, in Crawford, the conven- ing authority had intentionally selected a black servicemember to serve as a court member where the ac- cused was black, reasoning that “[i]f deliberately to include qualified persons is discrimination, it is discrimination in favor of, not against, an accused.” 15 C.M.A. at 41, 35 C.M.R. at 13. As we noted decades later, if an accused was black and a “convening authority had intentionally selected black offic- ers as members of the court-martial panel, Crawford’s hold- ing would apply.” Smith, 27 M.J. at 249. “Moreover, if appel- lant were a female whose case has been referred for trial and the convening authority had appointed female members, the rationale of Crawford would apply.” Id. It is in this con- text that we concluded that Article 25, UCMJ, does not pre- clude a commander from taking gender into account if he or she “[was] seeking in good faith to assure that the court- martial panel is representative of the military population.” Smith, 27 M.J. at 249 (citing Crawford, 15 C.M.A. 40–41, 35 C.M.R. at 12−13). Against this backdrop, the absurdity of the suggestion that the panel composition in this case was an appropriate attempt at “inclusiveness,” or “representativeness” is readily apparent. First, Appellant is neither a woman nor a victim advocate. Rather, he is a male, accused of rape. Second, as a matter of common sense, seventy percent is not statistically or otherwise “representative,” of a population comprising less than twenty percent of the total pool of potential panel members. Third, the findings of the military judge make clear that the severe discrepancy between the percentage of available female panel members and the final makeup of
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Appellant’s panel was not reflective of a good-faith attempt to either comply with the dictates of Article 25, UCMJ, or create a more representative or an inclusive panel. Rather, it was riddled with intentional efforts to maximize the number of women on the panel because VADM Brown, RADM Col- vin, and RADM Ryan thought it was “very important” to have a “large number of women” on the panel in this sexual assault case. We thus reject the CGCCA’s suggestion that the issue of improper member selection in this case was supported by a statistical anomaly alone. Riesbeck, 2016 CCA LEXIS 744, at *14−15. It is true that bare statistical evidence showing over selection of a particular group, without other support- ing facts, is generally not sufficient to raise the issue of court stacking. United States v. White, 48 M.J. 251, 255 (C.A.A.F. 1998). But this case presents facts far in excess of a statisti- cal anomaly, and the CGCCA erroneously applied Lewis to find that Appellant failed to raise the issue of improper se- lection criteria. Riesbeck, 2016 CCA LEXIS 744, at *14−15. This case is readily distinguishable from Lewis. In Lewis, we held that the appellant failed to raise the issue of court stacking where the convening authority selected five men and four women to appellant’s court-martial panel. 46 M.J. at 341–42. “[N]o one could explain why so many women were detailed to appellant’s [court-martial],” Id. at 342, but the appellant in Lewis was unable to even show that the gov- ernment intentionally selected women to serve on the pan- els. Id. In other words, in Lewis, there was no evidence that an improper selection criteria was used to create the anoma- lous panel, rather, the evidence was that all efforts were to comply with Article 25, UCMJ. In stark contrast, the record in this case is replete with evidence that the inclusion of a high percentage of women was the result of intentional choices by the first three convening authorities, and the ap- parently untutored acquiescence of the fourth.10 It is the ev-
10 We summarily jettison the red herring upon which the DuBay military judge appeared to rest his final conclusion, that ADM Zukunft was ignorant of the gender composition of the final convening order so that he could not engage in court stacking. As our cases on court stacking make clear, the actual ignorance of the convening authority does not insulate him or her from the errors
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idence that an improper selection criterion was actually used that raises the court stacking issue. Here, the DuBay military judge found that at each phase of panel selection, despite “no coordinated action,” VADM Brown, RADM Colvin, and RADM Ryan “conscious[ly] or unconscious[ly]” decided to select a disproportionate number of women to serve on Appellant’s panel. The DuBay military judge found that no other discernible group was over repre- sented to this extent and no other selection criteria were identified that could explain the selection. This factual de- termination is not clearly erroneous, and distinguishes the case at bar from Lewis. Despite no “coordinated action” between VADM Brown, RADM Colvin, and RADM Ryan, the findings of the DuBay military judge make clear that: (1) VADM Brown, RADM Colvin, and RADM Ryan all acted in an atmosphere of ex- ternal pressure regarding sexual assault cases; (2) all con- sidered gender as a factor when selecting members for Ap- pellant’s court-martial panel; (3) all selected groups which significantly overrepresented women; (4) that the most like- ly explanation for their selections were “decisions” that it was “very important to have a large number of women on the court” (emphasis added); (5) that no other Article 25, UCMJ, criteria distinguished the women selected; (6) that at least two of the individuals with input into the process devi- ated from their ordinary criteria in making the selections for this case; (7) that with the exception of one woman and one convening authority, those who selected women for consid-
or misconduct of his or her subordinates, which are errors affect- ing the court-martial selection process and court stacking none- theless. Lewis, 46 M.J. at 341 (“[D]eliberate stacking of the pool of potential court members by a subordinate for the convening au- thority is a form of unlawful command influence.” (citing Hilow, 32 M.J. at 440)); see also Upshaw, 49 M.J. at 113 (“Court stacking may occur if a subordinate stacks the list of nominees presented to the convening authority.” (citing Hilow, 32 M.J. at 440)). As such, ADM Zukunft’s ignorance of the number of women present on the panel does not purge the error from the panel selection process, particularly where he was neither aware that the recommenda- tions given to him were not based on Article 25, UCMJ, nor inde- pendently cognizant of what Article 25, UCMJ, required.
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eration for the panel did not know the women selected. Moreover, unlike other cases, the DuBay hearing did not in- clude any findings that any of the individuals involved made their selections based on Article 25, UCMJ, criteria, but ra- ther that the final convening authority didn’t even know the Article 25, UCMJ, criteria. These findings are not clearly erroneous, and directly conflict with the notion that women were selected for Appel- lant’s court-martial panel either inadvertently or to ensure that Appellant received a representative panel. Crawford, 15 C.M.A. 40–41, 35 C.M.R. at 12−13. In sum, a selection pro- cess geared to ensure a “large number” of women were placed on the panel in this case does not fall into the limited “representativeness” exception to Article 25, UCMJ, created by Crawford and Smith, constitutes improper member selec- tion, and was error. We emphasize that our conclusion does not rest on bare statistical evidence of the overrepresenta- tion of women on the court-martial panel, cf. White, 48 M.J. at 255, but rather on the improper purpose behind the member selection. B. Court Stacking and Unlawful Command Influence
While the government is absolutely prohibited from as- signing members to—or excluding members from—a court- martial panel in order to “achieve a particular result as to findings or sentence” (court stacking), Lewis, 46 M.J. at 341 (internal quotation marks omitted) (quoting Smith, 27 M.J. at 250), not all improper member selection constitutes court stacking. This Court applies a case-specific analysis when deciding issues of improper member selection. Bartlett, 66 M.J. at 430 (citing Hilow, 32 M.J. at 440−42; McClain, 22 M.J. at 132). But even reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system. Greene, 20 C.M.A. at 238, 43 C.M.R. at 78. Where improper selection criteria have been used to select members for a court-martial panel, “[s]uch doubt must be resolved in favor of the accused.” Id. at 238, 43 C.M.R. at 78 (citation omitted). Court stacking is “a form of unlawful command influ- ence,” and has the improper motive of seeking to affect the findings or sentence by including or excluding classes of in-
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dividuals on bases other than those prescribed by statute. Upshaw, 49 M.J. at 113 (internal quotation marks omitted) (quoting Lewis, 46 M.J. at 341). Once the issue of improper member selection has been raised, as it has been in this case, the burden shifts to the government to demonstrate beyond a reasonable doubt that improper selection methods were not used, or, that the motive behind the use of the se- lection criteria was benign. Id; Roland, 50 M.J. at 69; McClain, 22 M.J. at 132; Greene, 20 C.M.A. at 239, 43 C.M.R. at 79. The government can rebut a claim of court stacking by showing administrative error, Upshaw, 49 M.J. at 112−13 (court-stacking not raised where government showed and defense conceded that exclusion of technical sergeants from the panel was a mistake in the absence of evidence to the contrary), or by showing that, in fact, the convening authority included or excluded a certain group from panel membership in an attempt to comply with Article 25, UCMJ. United States v. Nixon, 33 M.J. 433, 434−35 (C.M.A. 1991) (holding that explicit testimony regarding compliance with Article 25, UCMJ, criteria and determina- tion of CCA that the convening authority did comply over- rode appearance of a stacked panel). The government cannot always meet that high burden. McClain, 22 M.J. at 132; Greene, 20 C.M.A. at 239, 43 C.M.R. at 79. Sometimes the facts clearly establish an im- proper motive based on testimony that the purpose of the improper selection was to create a panel more disposed to “adjudge heavier sentences,” McClain, 22 M.J. 130−31, or to select members with the unique “experience” required to understand the testimony of the victim, Smith, 27 M.J. at 249−50. Those easy cases are clear instances of court stack- ing. Other times, as in this case, there is no outright admis- sion, but the government has not, and likely cannot, estab- lish a benign purpose for the improper selection criteria. The DuBay hearing findings of fact contains not a single expla- nation, let alone a “benign” explanation, for the intentional selection of so many women in this sex offense case, other than that the various convening authorities believed it was “very important” to place a large number of women on the panel. The Government has failed to show beyond a reason-
15 United States v. Riesbeck, No. 17-0208/CG Opinion of the Court
able doubt that there was a benign explanation to rebut the allegation of improper member selection. Contrary to the CGCCA’s view, the absence of direct evi- dence in the form of testimony of malintent and impure mo- tive does not mean that there is no evidence that the conven- ing authorities or their subordinates were motivated by the intent to “achieve a particular result as to findings or sen- tence.” Id. at 250 (internal quotation marks omitted) (quot- ing McClain, 22 M.J. at 132). Rather, as in other instances of asserted unlawful command influence, where the govern- ment fails to meet its burden to rebut the allegation, as a matter of law Appellant has, therefore, established unlawful command influence—in this case, that the purpose for the improper selection criteria was the unlawful one of seeking to affect the findings or sentence. United States v. Gerlich, 45 M.J. 309, 310 (C.A.A.F. 1996); cf. United States v. Biagase, 50 M.J. 143, 150–52 (C.A.A.F. 1999). And here that legal consequence and inference is fully supported by the record. The salient facts paint a clear pic- ture of court stacking based on gender in an atmosphere of external pressure to achieve specific results in sexual as- sault cases. Against that backdrop, purposefully selecting a panel that is seventy percent female, most of whom are vic- tim advocates, from a roster of officers that was only twenty percent female and a pool of enlisted that was only thirteen percent female, smacks of a panel that was “hand-picked” by or for the Government. United States v. Hedges, 11 C.M.A. 642, 642, 29 C.M.R. 458, 459 (1960); Cf. Dowty, 60 M.J. at 171 (“[A] desire for representativeness cannot be a subter- fuge to pack the panel.” (citation omitted)). While we are loath to subscribe to the notion that women are more in- clined to reach a finding of guilty in a rape case than men,11 the facts of this case raise the specter that those tasked with choosing Appellant’s court-martial panel hoped to select members predisposed to “understand the testimony” of sex-
11 Although there is nothing wrong with placing either women or victim advocates on panels deciding cases involving sexual as- sault, when the majority of panel members in a sexual assault case are both, it gives the panel the distinct appearance of being “hand-picked” by and for the government.
16 United States v. Riesbeck, No. 17-0208/CG Opinion of the Court
ual assault victims, Smith, 27 M.J. at 250, in accordance with this misguided view. C. Prejudice
In Bartlett, we established three broad categories of re- view to guide appellate analysis of prejudice in cases involv- ing the misapplication of Article 25(d), UCMJ. 66 M.J. at 430. When the error derives from court stacking and unlaw- ful command influence, as it does in this case, this Court has placed the burden on the Government to prove that the error was harmless beyond a reasonable doubt. Id. (citing Hilow, 32 M.J. at 442; McClain, 22 M.J. at 132). Unlawful command influence is “the mortal enemy of military justice.” United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986). “No person subject to this chapter may at- tempt to coerce or, by any unauthorized means, influence the action of a court-martial. . . .” Article 37(a), UCMJ. We are particularly unforgiving in the context of court member selection, as where manipulation of the member selection process is “fostered or perpetuated by military authorities through ignorance or deceit, it substantially undermines the public’s confidence in the integrity of the court-martial pro- ceedings.” Hilow, 32 M.J. at 443 (citations omitted). In order to prevail on the issue of prejudice, the Govern- ment must convince this Court, beyond a reasonable doubt, that Appellant received a fair trial, free from the effects of unlawful command influence. Lewis, 63 M.J. at 414−15. In the improper member selection context, any “doubt must be resolved in favor of the accused.” Greene, 20 C.M.A. at 238, 43 C.M.R. at 78; cf. Hilow, 32 M.J. at 432−43 (finding a lack of prejudice where appellant ultimately pleaded guilty). In this case, the Government has not met the burden to show, beyond a reasonable doubt, that Appellant received a fair trial from an impartial panel. Lewis, 63 M.J. at 413; Ward, 74 M.J. at 229 (citing Kirkland, 53 M.J. at 25). The very panel that tried, convicted, and sentenced Ap- pellant was the same panel “hand-picked” by those charged with selecting Appellant’s court-martial panel. Cf. Hilow, 32 M.J. at 443. The Government’s case was weak, primarily based on the testimony of SN S, the putative victim, who was unable to remember many of the events surrounding
17 United States v. Riesbeck, No. 17-0208/CG Opinion of the Court
the crime due to alcohol use and whose testimony was con- troverted by other witnesses at trial. The Government’s case was so weak, in fact, that the Article 32 Investigating Officer recommended the dismissal of the Article 120, UCMJ, charges against Appellant. In addition, the military judge failed to conduct even a rudimentary investigation into Ap- pellant’s claims of improper member selection, completely abdicating his responsibility to cleanse Appellant’s court- martial of the unlawful command influence. United States v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998) (“[t]he military judge is the last sentinel protecting an accused from unlaw- ful command influence”); United States v. Gore, 60 M.J. 178, 187−88 (C.A.A.F. 2004). And the CCA, rather than correct the obvious error, did not embrace its proper and frankly necessary role in the context of member selection and unlaw- ful command influence, but rather rationalized the error away as a benign effort to seek inclusiveness. The Government, set on arguing that there was no error, hasn’t even claimed to meet its burden to show the error was harmless. Yet the error in this case is both so obvious and so egregious that it adversely affected not only Appellant’s right to a fair trial by an impartial panel, but also the essen- tial fairness and integrity of the military justice system. Ar- ticle 25, UCMJ; Article 37, UCMJ; see McClain, 22 M.J. at 132. We thus decline to authorize a rehearing, and order that the charges and specifications be dismissed with preju- dice. Article 67(d), UCMJ, 10 U.S.C. § 867(d) (2012); Lewis, 63 M.J. at 416. Due to the patent and intolerable efforts to manipulate the member selection process, contra every re- quirement of the law, Article 37, UCMJ; Smith, 27 M.J. at 250−51; McClain, 22 M.J. at 132, the failures of the military judge, the DuBay military judge, and the CGCCA, to inves- tigate, recognize, or ameliorate the clear court stacking in this case, and the actual prejudice to the Appellant of being tried by a panel cherry-picked for the Government, dismissal with prejudice is the only remedy that can “eradicate the un- lawful command influence and ensure the public perception of fairness in the military justice system.” Lewis, 63 M.J. at 416. III. Decision
The decision of the United States Coast Guard Court of
18 United States v. Riesbeck, No. 17-0208/CG Opinion of the Court
Criminal Appeals is reversed. The charges and specifications are dismissed with prejudice. The record of trial is returned to the Judge Advocate General of the Coast Guard.
19 APPENDIX A