United States v. Wright
2015 CCA LEXIS 8
| A.F.C.C.A. | 2015Background
- AFDW convening authority referred sexual-assault-related lesser-included charges after an earlier GCMCA had dismissed charges following an Article 32; defense alleged unlawful command influence (UCI) tied to senior Air Force intervention and an unusual transfer.
- Defense sought broad discovery of correspondence from multiple senior offices (including TJAG and Secretary-level offices) to support a motion to dismiss for UCI; Government produced ~2,000 non-privileged documents and withheld ~3,500 as privileged.
- Military judge ordered production of broad categories of correspondence; Government asserted attorney-client and work-product privileges and refused further disclosure.
- Military judge found the accused had made a colorable UCI claim, concluded privilege might be overcome by constitutional rights or exceptions, and abated proceedings after the Government declined to disclose the withheld materials.
- Government appealed under Article 62; the Air Force CCA held the military judge’s abatement was premature because he failed to narrow which materials warranted in camera review and did not require a privilege log or other narrowing steps before abating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the military judge properly abated the court-martial when the Government asserted privilege over ~3,500 responsive documents | Gov: military judge abused discretion; he had complied with discovery orders and properly asserted privilege; no UCI shown | Accused: UCI claim gives broad discovery rights; privilege yields to constitutional right to evidence for UCI claim | Court: Abatement was premature — judge failed to define scope for in camera review or require a privilege log; remanded for clarification |
| Standard and threshold for ordering in camera review of privileged materials | Gov: privilege prevents disclosure; in camera review not warranted absent clear exception | Accused: factual basis for in camera review exists due to unusual transfer and alleged senior-level pressure | Court: in camera review appropriate only after a threshold showing — judge must find reasonable likelihood documents contain relevant noncumulative evidence and narrow scope before ordering review |
| Whether the military judge adequately identified facts supporting a colorable UCI claim | Gov: affidavits and stipulations rebut UCI, no evidence of knowing influence | Accused: transfer, senior comments, and procedural irregularities support colorable claim | Court: judge’s factual findings were insufficiently specific as to what acts constituted UCI and who was influenced; more detailed findings required |
| Proper procedures when voluminous privileged materials are responsive | Gov: blanket privilege assertions acceptable; in camera review unnecessary | Accused: court should compel disclosure or in camera review given gravity of UCI claim | Court: judge should require narrowing tools (privilege log, categorization, specific findings) before abatement; may later order in camera review and then address compliance or appeal |
Key Cases Cited
- United States v. True, 28 M.J. 1 (C.M.A. 1989) (abatement can be functionally equivalent to termination)
- United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997) (no cognizable harm from in camera review of privileged materials)
- United States v. Bowser, 73 M.J. 889 (A.F. Ct. Crim. App. 2014) (in camera review appropriate after initial judicial determination)
- Zolin v. United States, 491 U.S. 554 (U.S. 1989) (judge may order in camera review only after factual showing adequate to support a reasonable belief that review may reveal evidence establishing an exception to privilege)
- United States v. Klemick, 65 M.J. 576 (N.M. Ct. Crim. App. 2006) (threshold test for in camera review: specific factual basis showing reasonable likelihood records contain relevant necessary information)
- United States v. Kosek, 4 M.J. 60 (C.M.A. 1994) (remand for clarification when findings are incomplete or ambiguous)
- United States v. Ellis, 68 M.J. 341 (C.A.A.F. 2010) (abuse of discretion standard and limits when incorrect legal principles are applied)