United States v. Larrabee, 201700075

Background

Appellant, a retired Marine transferred to the Fleet Marine Corps Reserve, pleaded guilty at general court-martial to sexual assault and indecent recording; sentenced to 8 years confinement and a dishonorable discharge (convening authority approved sentence, suspended confinement >10 months per PTA).
While in pretrial confinement (PTC), an IRO initially upheld confinement but the military judge later found IRO abused discretion and ordered release; appellant received additional day-for-day credit for the PTC period.
During pretrial negotiations, the Staff Judge Advocate (SJA) criticized the military judge’s prior rulings to defense counsel and discussed requesting additional judge advocates/a second military judge for Okinawa; an email/phone call from Headquarters later informed the military judge he might be reassigned earlier than his scheduled end of tour.
Defense sought to voir dire the military judge about potential bias and argued appearance of unlawful command influence (UCI); the judge denied an explicit UCI motion at trial and ruled on the Article 13 motion, awarding PTC credit.
Post-trial, appellant asked the convening authority (CA) either to disqualify himself or order an Article 39(a) session to investigate alleged UCI; the CA denied the request. Appellant appealed raising UCI and CA’s denial of a post-trial hearing (other constitutional jurisdictional claims were summarily rejected).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether SJA’s comments and apparent effort to reassign the military judge constituted unlawful command influence (UCI)	SJA’s criticisms and apparent attempt to have judge reassigned created actual or apparent UCI that tainted the trial	SJA’s remarks were private, related to manpower/processing concerns, not directed to influence this case; judge was not removed and remained impartial	Appellant failed to properly raise UCI at trial; on the merits, government proved beyond reasonable doubt facts did not constitute actual or apparent UCI; no intolerable strain on public perception
Whether the military judge should have recused or addressed UCI at trial	Judge ignored or minimized UCI concerns after learning of SJA’s criticisms and earlier reassignment call	Judge conducted additional voir dire, affirmed impartiality, and granted PTC relief showing independence	No recusal required; judge’s rulings (including PTC credit) demonstrate impartiality
Whether CA abused discretion by denying post-trial Article 39(a) hearing to investigate UCI	CA should have ordered a post-trial hearing because there was sufficient evidence of UCI raising questions about fairness and possible relief	Allegations were unsubstantiated, based on unsworn or unrelated assertions, and did not show matters affecting legal sufficiency	CA did not abuse discretion; appellant’s post-trial submissions failed to substantiate matters that would affect legal sufficiency
Whether any alleged UCI warranted relief to findings or sentence	Appellant sought additional relief (e.g., more PTC credit, disqualification) based on UCI	Government: no connection between SJA’s comments and case outcome; judge and CA actions protect fairness	No relief granted; findings and sentence affirmed as correct in law and fact

Key Cases Cited

United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017) (framework for UCI analysis; burden-shifting once some evidence shown)
United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999) (threshold for raising UCI requires more than mere allegation)
United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (UCI standards; government may prove facts do not constitute UCI)
United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006) (appearance of UCI can require recusal/removal)
United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004) (UCI described as mortal enemy of military justice)
United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003) (appearance of UCI harms military justice system)
United States v. Ruiz, 49 M.J. 340 (C.A.A.F. 1998) (convening authority’s discretion on post-trial Article 39(a) sessions reviewed for abuse of discretion)
United States v. Lofton, 69 M.J. 386 (C.A.A.F. 2011) (CA abuse of discretion where post-trial hearing denial is based on substantiated assertions)