United States v. Hill, ACM 38979

Background

Appellant (an Air Force instructor pilot and flight commander) pleaded guilty at a general court-martial to multiple offenses including failure to obey a no‑contact order, false statement, conduct unbecoming, adultery, fraternization, and obstruction; sentence approved per PTA: dismissal, 45 days confinement, forfeiture.
The relationship with a student officer (2d Lt RS) continued after a command-directed investigation; Appellant lied to the investigator and violated an oral and written no‑contact order, used burner phones, and recorded explicit images which he later hid to obstruct the investigation.
Appellant entered a pretrial agreement that waived "all motions which may be waived under the Rules for Courts‑Martial"; defense counsel told the court they would present an "aura of intimidation"/unlawful command influence (UCI) claim via an unsworn statement rather than a formal motion.
The military judge clarified on the record that UCI affecting the adjudicative process cannot be waived and expressly allowed presentation of the UCI-related evidence; Appellant nonetheless did not move for relief and instead included emails from potential witnesses in his unsworn statement at sentencing.
On appeal Appellant raised three assignments of error: (1) unlawful command influence affected sentencing by chilling witness support; (2) plain error in admitting the squadron commander’s opinion of Appellant’s rehabilitative potential; and (3) plain error in trial counsel’s reference to Air Force Core Values during sentencing argument.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Whether unlawful command influence (UCI) deprived Appellant of a fair sentencing hearing by chilling witnesses	Emails and unsworn statement show an "aura of intimidation" at Laughlin AFB that chilled potential character witnesses, prejudicing sentencing	Appellant waived the issue at trial by foregoing a formal motion and presenting the material only in an unsworn statement; emails do not show command action or nexus to case	No relief. Court declined waiver for adjudicative‑process UCI claims but found Appellant failed to produce sufficient evidence of UCI to trigger relief
Whether it was plain error to admit the squadron commander’s opinion that Appellant’s rehabilitative potential was "poor to fair" because it was principally based on offense severity	Admission was prejudicial because the commander relied principally on offense severity to form his opinion, violating R.C.M. 1001 limits	Testimony was permissible opinion evidence with adequate foundation; even if error, any error was harmless because it was a small part of sentencing and the military judge considered it appropriately	No prejudicial plain error. Admission was at most plain error but did not materially affect substantial rights
Whether trial counsel’s reference to Air Force Core Values in sentencing constituted improper command policy and plain error	References to Core Values injected command policy and risked impermissible influence on sentencing	References were inspirational/aspirational, distinguishable from explicit command directives in Pope; no evidence the military judge was swayed	No error. References to Core Values were not improper; even if erroneous, no material prejudice shown

Key Cases Cited

United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995) (distinguishes UCI in accusatorial vs. adjudicative stages; waiver may apply to preferral but not adjudicative UCI)
United States v. Ayala, 43 M.J. 296 (C.A.A.F. 1995) (accused must produce some evidence to raise UCI; threshold is low but more than bare allegation)
United States v. Allen, 33 M.J. 209 (C.M.A. 1991) (proof of command influence must be more than an appearance; appellate courts require some evidentiary showing)
United States v. Powell, 49 M.J. 460 (C.A.A.F. 1998) (plain‑error standard for unobjected‑to trial errors)
United States v. Horner, 22 M.J. 294 (C.M.A. 1986) (military judge can place testimonial opinion evidence in proper perspective in judge‑alone sentencing)
United States v. Pope, 63 M.J. 68 (C.A.A.F. 2006) (command correspondence expressing that "harsh action" will follow may create appearance of improper command influence)
United States v. Erickson, 65 M.J. 221 (C.A.A.F. 2007) (presumption that military judges know and follow law; they can distinguish proper from improper sentencing arguments)