United States v. Weasler

43 M.J. 15, 1995 CAAF LEXIS 109, 1995 WL 564908

• Court: Court of Appeals for the Armed Forces
• Decided: September 26, 1995
• Docket: No. 94-1249; CMR No. 9300551
• Status: Published

Opinions

Opinion of the Court

CRAWFORD, Judge:

1. Pursuant to his pleas, appellant was convicted of making and uttering a total of 28 bad checks (alleged in 6 specifications) of a total value of $8,920, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was sentenced by officer members to a bad-conduct discharge, 9 months’ confinement, and reduction to the lowest enlisted grade. Acting pursuant to a pretrial agreement, the convening authority approved the sentence but suspended confinement in excess of 3 months for a period of 12 months. The Court of Military Review¹ affirmed the findings and sentence. We granted review of the following issues:

I

WHETHER THE FINDINGS AND SENTENCE MUST BE SET ASIDE AND THE CHARGE AND ITS SPECIFICATIONS DISMISSED IN ORDER TO NEGATE THE EFFECTS OF UNLAWFUL COMMAND INFLUENCE IN THE PREFERRAL AND REFERRAL OF THE CHARGES.

II

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT IN FAILING TO DETERMINE FACTUALLY AND LEGALLY WHETHER UNLAWFUL COMMAND INFLUENCE EXISTED AND ERRED IN FAILING TO RULE ON THE MOTION TO DISMISS BEFORE THE COURT.

III

WHETHER THE PRETRIAL AGREEMENT PURPORTING TO WAIVE APPELLANT’S OBJECTION TO UNLAWFUL COMMAND INFLUENCE VIOLATES PUBLIC POLICY.

We hold that the pretrial agreement initiated by appellant waived any objection to improper interference with the preferral and referral of charges.

FACTS

2. Prior to preferral of charges appellant’s company commander, Captain (CPT) Michele Morris, was scheduled to go on leave. In late October she discussed appellant’s case with the battalion commander and decided to recommend a general court-martial. Before departing on leave she met with 1st Lieutenant (1LT) John Hottman, who was to be the acting commander. She told him that if charges came to the office, all he would have to do is “sign” them. CPT Morris testified that if 1LT Hottman had recommended anything other than a general court-martial, she would have repreferred the charges. Appellant’s last request for an administrative discharge in lieu of court-martial was disapproved by CPT Morris, as well as the battalion commander, the brigade commander, and the general court-martial convening authority. In the transmittal form attached to the charges, the battalion commander and the brigade commander recommended a general court-martial.

3. During voir dire of the members, appellant filed a motion to dismiss the charges alleging unlawful command influence in the preferral process. Following testimony on appellant’s motion at an Article 39(a), UCMJ, 10 USC § 839(a), session, the judge stated that if 1LT Hottman did not exercise his own discretion, there may have been an improper preferral of the charges. The judge then granted a continuance for the Government to attempt to secure the testimony of 1LT Hottman.

4. During the continuance, defense counsel proposed to waive the motion to dismiss, Appellate Exhibit (App.Ex.) IX, in exchange for a favorable sentence limitation. Thereafter, the defense’s waiver in writing of the motion to dismiss was accepted. “I understand that if my motion is successful and the military judge were to dismiss the charge without prejudice to the Government that the Government could re-prefer the charge.” App. Ex. XII. Later in that waiver document appellant also agreed to “waiv[e] further investigation into my allegations of unlawful command influence.”

5. The defense acknowledged at trial that normally an accused cannot waive a command-influence motion as part of a pretrial agreement. But the defense argued that the non-waiver rule does not apply when the waiver “originates” with the defense. Further, counsel stated that the agreement was not prohibited by ROM 705(c)(1)(B), Manual for Courts-Martial, United States, 1984. In response to the judge’s inquiry the defense also asserted that there was no jurisdictional impediment to the agreement. The defense cited United States v. Cruz, 25 MJ 326 (CMA 1987), and United States v. Corriere, 24 MJ 701 (ACMR 1987), as permitting waiver of a command-influence issue.

DISCUSSION

6. “Command influence is the mortal enemy of military justice.” United States v. Thomas, 22 MJ 388, 393 (CMA 1986), cert, denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). It strikes at the very heart of the system. Unlawful command influence undermines the integrity of the military justice system as well as of the commanders who are responsible for discipline within their units.

7. Unlawful command influence has been a concern since World War I. Johnson, Unlawful Command Influence: A Question of Balance, The Judge Advocate General (Navy) Journal 87, 88 (March-April 1965). Because of the number of post-World War II complaints concerning the issue, Congress responded with Articles 37 and 98, UCMJ, 10 USC § 837 and 898, respectively, which make command influence punishable under the Code. Article 37(a) provides:

No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceedings. No person subjected to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

8. The Manual for Courts-Martial also prohibits command influence. ROM 306(a). The diligence of this Court in preventing unlawful command influence was emphasized by the Supreme Court in Weiss v. United States, — U.S. -, -, 114 S.Ct. 752, 762, 127 L.Ed.2d 1 (1994). The Chief Justice observed:

The entire system ... is overseen by the Court of Military Appeals, which is composed entirely of civilian judges who serve for fixed terms of 15 years. That Court has demonstrated its vigilance in checking any attempts to exert improper influence over military judges____

9. Recently we stated in United States v. Hamilton, 41 MJ 32, 36 (CMA 1994), that “[t]he term ‘unlawful command influence’ has been used broadly in our jurisprudence to cover a multitude of situations in which superiors have unlawfully controlled the actions of subordinates in the exercise of their duties under the UCMJ.” But this Court has sought to draw a distinction between the accusatorial process and the adjudicative stage, that is, the difference between preferral,² forwarding,³ referral,⁴ and the adjudicative process, including interference with witnesses,⁵ judges,⁶ members,⁷ and counsel.⁸

10. This case does not involve the adjudicative process. Here the issue is whether coercion influenced the preferral of charges. In the past we have “treated” such charges “as unsigned and unsworn.” United States v. Hamilton, 41 MJ at 36. It was the impact on the adjudicative stage that was one of the factors employed in United States v. Mezzanatto, — U.S. -, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), in rejecting the Court of Appeals for the Ninth Circuit’s holding that one cannot waive Fed.R.Evid. 410.⁹

11. As Justice Thomas stated in Mezzanatto:

[Tjhere may be some evidentiary provisions that are so fundamental to the reliability of the fact-finding process that they may never be waived without irreparably “discrediting] the federal courts.”... United States v. Josefik, 753 F.2d 585, 588 (C.A.7 1985) (“No doubt there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept”). But enforcement of agreements like respondent’s plainly will not have that effect. The admission of plea statements for impeachment purposes enhances the truth-seeking function of trials and will result in more accurate verdicts.

— U.S. at-, 115 S.Ct. at 803 (emphasis added).

12. The Court also rejected Mezzanatto’s argument that to allow these waivers would permit prosecutorial overreaching. Justice Thomas stated:

The dilemma flagged by respondent is indistinguishable from any of a number of difficult choices that criminal defendants face every day. The plea bargaining process necessarily exerts pressure on defendants to plead guilty and to abandon a series of fundamental rights, but we have repeatedly held that the government “may encourage a guilty plea by offering substantial benefits in return for the plea.” “While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’ — and permissible — ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ ”

Id. at---, 115 S.Ct. at 805-06 (citation omitted).

13. The Court indicated the “mere potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing negotiation altogether.” To overcome the question of abuse, it would be appropriate to make an inquiry as to whether the waiver agreement was “the product of fraud or coercion.” The Court held that “absent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea-statement Rules is valid and enforceable.” — U.S. at-, 115 S.Ct. at 806.

14. As to the accusatory stages, we have held that an accuser may not refer a case to trial and that a commander may not be coerced into preferring charges. United States v. Jeter, 35 MJ 442 (CMA 1992). Where there is coercion in the preferral process, “the charges are treated as unsigned and unsworn,” but the “failure to object” constitutes waiver of the issue. Furthermore, an individual should not interfere with the personal recommendation as to referral. However, we have consistently held that any defects in the forwarding process are waived if not challenged at trial. United States v. Hamilton, 41 MJ at 36; but see 41 MJ at 39, 40 (separate opinions of Sullivan, C.J. and Wiss, J.). We reject the argument that there cannot be a waiver under the facts in this particular case. As the Court declared in United States v. Kitts, 23 MJ 105, 108 (CMA 1986), “[I]t is against public policy to require an accused to withdraw an issue of unlawful command influence in order to obtain a pretrial agreement.” However, this is not an instance of requiring the accused to withdraw an issue. On the contrary, the suggestion for the pretrial agreement and waiver in this case originated with appellant and his counsel. If an accused waives an allegation of unlawful command influence in the preferral of charges by failure to raise a timely objection at trial, then surely an accused, following a timely objection, should be permitted to initiate an affirmative and knowing waiver of an allegation of unlawful command influence in the preferral of charges in order to secure the benefits of a favorable pretrial agreement. To hold otherwise would deprive appellant of the benefit of his bargain.

15. Additionally, the actions of CPT Morris are not so pernicious that they taint every stage of the proceeding, and our holding does not undermine public confidence in these proceedings or in military criminal law generally. As the military judge noted, he would have allowed the Government to withdraw the charges and prefer new untainted charges. This in effect would have denied appellant a very favorable pretrial agreement.

16. We are satisfied beyond a reasonable doubt that there was no unlawful command influence that affected either the findings or sentence in this case. United States v. Stombaugh, 40 MJ 208 (CMA 1994); see also United States v. Dykes, 38 MJ 270 (CMA 1993); United States v. Allen, 33 MJ 209, 212 (CMA 1991), cert, denied, 503 U.S. 936, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992); United States v. Mabe, 33 MJ 200, 203 (CMA 1991); United States v. Levite, 25 MJ 334, 338 (CMA 1987); United States v. Thomas, 22 MJ 388 (CMA 1986), cert, denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987).

17. Our holding in this case does not foreclose the Court from stepping in when there are actions by commanders that undermine public confidence in our system of justice or affect the rights of an accused. We will be ever vigilant to ensure that unlawful command influence does not play a part in our military justice system.

The decision of the United States Army Court of Military Review is affirmed.

Judges COX and GIERKE concur.

1 See 41 MJ 213, 229 n. *(1994).

2 . United States v. Hamilton, 41 MJ 32 (CMA 1994) (four judges agreed that defects in preferral of charges are waived if not raised at trial). Cf. United States v. Thomas, 22 MJ 388, 394 (CMA 1986) (the Court held that the actions of the division commander did not constitute command influence because they "would not have adversely affected an accused. Conceivably, those remarks might even have benefited an accused____”), cert, denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). See also United States v. Kelly, 40 MJ 558, 569-70 (NMCMR 1994).

3 . United States v. Hamilton, 41 MJ at 37 (three judges agreed defects in ... forwarding of charges” are waived if not raised at trial); United States v. Shiner, 40 MJ 155, 157 (CMA 1994) ("Assuming, arguendo, that the [Navy] captain [special court-martial convening authority (CA) ] became an accuser, we hold that the failure of the captain to forward the charges to the next higher level of command was a nonjurisdictional error, which was waived by appellant’s failure to raise it at his court-martial.”); United States v. Nix, 40 MJ 6 (CMA 1994) (the Court presumed error and set aside the conviction when the CA forwarding the charges had a personal grudge that was not negated in the record).

4 . United States v. Davis, 37 MJ 152, 155-56 (CMA 1993) (allegation of command influence by brigade commander on major to dispose of offenses by general court-martial instead of Article 15, Uniform Code of Military Justice, 10 USC § 815, or special court-martial unsubstantiated by military judge’s specific findings of fact that major "independently” arrived at his referral recommendation and was not unlawfully influenced by superior authority in arriving at his decision); United States v. Jeter, 35 MJ 442, 446-47 (CMA 1992) (accused sought favorable treatment from convening authority through "blackmail” scheme and then alleged that referral was improper because CA was actually an accuser as a result of "personal interest" in case and had influenced acting commander in referral of case; accused also alleged that CA influenced superior commander when superior commander reviewed findings and sentence; allegations not supported by findings and conclusions of hearing held under United States v. DuBay, 17 USCMA 147, 37 CMR 411, (1967); in any event, was waiver of issue by accused because seen as an Article 22(b), UCMJ, 10 USC § 822(b), allegation). Cf. United States v. Corcoran, 40 MJ 478, 484 (CMA 1994) (unanimous opinion) ("[n]onjurisdictional defects in the preferral, forwarding, and referral process are waived if not raised prior to entry of pleas”).

5 . United States v. Dykes, 38 MJ 270 (CMA 1993) (post-trial claims of command influence by squadron commander when he purportedly "improperly influenced” potential defense witnesses and purportedly influenced defense counsel into a sub rosa agreement with trial counsel; affidavits submitted on influence issue deemed inconclusive).

6 . United States v. Mabe, 33 MJ 200, 206 (CMA 1991) (allegation of unlawful command influence when Chief Judge of the Navy-Marine Corps Trial Judiciary sent letter to military judge about light sentencing; command influence found but held not to be prejudicial because of "prompt action to curtail” impact by the Judge Advocate General of the Navy, "full disclosure,” and "opportunity for voir dire and challenge” of judge).

7 . United States v. Hilow, 32 MJ 439 (CMA 1991); United States v. McClain, 22 MJ 124 (CMA 1986); United States v. Accordino, 20 MJ 102 (CMA 1985); United States v. Brice, 19 MJ 170 (CMA 1985). Cf. United States v. Reynolds, 40 MJ 198, 202 (CMA 1994) (three judges found no prejudice as a result of the court members’ meeting with commander prior to trial).

8 . United States v. Dykes, supra.

9 . Mil.R.Evid. 410, Manual for Courts-Martial, United States, 1984, is substantially the same as this Federal Rule of Evidence.