United States v. Ashby

STATES, Appellee, UNITED ASHBY, Captain, U.S.

Richard J. Corps, Appellant.

Marine

No. 08-0770.

Crim.App. No. 200000250. Appeals for Court of

U.S. Armed Forces.

Argued 2009. June Aug.

Decided

Ill opinion ERDMANN delivered Judge court.1 Ash- (Capt.) Richard J. Captain Appellant, Reserve, Corps Marine by, aircraft EA-6B Prowler pilot of an was the in the Italian training mission conducting a February 1998. The Prowler’s Alps on Joseph P. Ashby, Capt. crew consisted Schweitzer, navigator for this who co-accused, ad- and two mission officers. countermeasures ditional electronic flying at the aircraft was in the mission Late weight-bearing cables and struck low-levels system. car Aple cable As Cermis carrying twen- result, descending cable car fell from various nations over ty individuals twenty passen- ground. All feet to the Despite killed. in the cable car were gers upon the inflicted damages aircraft, it to a Ashby piloted successful landing at the North Atlantic emergency (NATO) air base Avi- Treaty Organization ano, Italy. general

Ashby ultimately faced two courts- he At the court-martial was martial. first charged offenses by of all acquitted members duty, negligently including suf- dereliction damaged, military property be fering nonmilitary property, recklessly damaging negligent involuntary manslaughter, and original charges had After homicide. trial, referred, it was discov- but been before ERDMANN, J., opinion of delivered during flight taken that a ered GOODWIN, J., Court, and COX in which eventually de- and been concealed had STUCKY, GIERKE, S.JJ., joined. and charge alleging two stroyed. separate A vio- opinion. J., concurring separate filed UCMJ, of Article U.S.C. lations RYAN, EFFRON, C.J., and and BAKER (2000), unbecoming an officer § conduct JJ., participate. did not The con- preferred. gentleman, and a was authority the Article vening directed Am- Dillon J. Appellant: Lieutenant For UCMJ, conjunction charge tried brose, JAGC, (argued); Lieutenant USN trial, charge. At his initial original with the (on brief)- Kadlec, JAGC, L. USN Kathleen however, Ashby refused to consent 133, UCMJ, charge joinder the Article and Commander Appellee: Lieutenant For authority. by convening JAGC, withdrawn (argued); it was Bunge, Colo- Paul D. USN charge subse- Puleo, USMC, K The Article and Brian Louis J. nel separate court-martial. brief). to a (on quently referred Keller 142(f), nation, Effron, Uniform Code Judge pursuant to E. Judge James Chief Andrew S. 1. 942(f) (UCMJ), § Military U.S.C. Baker, Justice Margaret Ryan of (2006). Judge A. recused and III, Judge Walter T. Cox participate Senior and did not themselves from this case Goodwin, participated "Sparky” Judge Gierke H.F. Judge Joseph Chief Senior opinion. R. in this 142(e)(i)(A)(iii), pursuant to Article this case Court for the in UCMJ, Judge District of the United States (2006). 942(e)(l)(A)(iii) desig- Virginia, 10 U.S.C. sat of West Southern District friends, At my kids, his second court-martial my say, hey, this is specifications convicted members of two your what dad did.... unbecoming gentle- conduct an officer and a Id. at 928. flight, Capt Before the man in violation of Article purchased pack Schweitzer of two blank justice obstruction of conspiring to ob- tapes. appellant’s assistance, theWith justice. struct He was sentenced to six tapes loaded one of the during flight confinement, months of pay forfeiture of all footage and shot video during sepa- three allowances, and dismissal from the ser- legs rate of their six-legged mission. Rec- convening authority vice. The approved the Capt ord at 931-32. Schweitzer claimed at and, sentence after remand2 and a new staff trial that the camera was not in at use (SJA)

judge advocate recommendation and mishap, time of the which occurred on the action, Navy-Marine the United States Id. leg last of the mission. Corps Court of Criminal Appeals affirmed strike, After the cable the crew was well and sentence. United States v. findings aware their aircraft seriously Ashby, No. NMCCA slip op. at 4 that, damaged and under the best circum- 2008) (N.M.Ct.Crim.App. June (per cu- stances, an emergency landing at riam). granted We of all review nine issues NATO air base Aviano would be re- by Ashby submitted to this court. Following quired. They they might also feared have issues, a careful review the asserted we eject from the aircraft. After success- affirm the Court of Appeals. Criminal fully executing an landing arrested at the base,

Aviano air the two aft crewmembers immediately emergency executed BACKGROUND egress from the aircraft accordance with underlying circumstances Ar- two mishap protocol. standard exiting Before ticle offenses commenced after aircraft, Capt Raney, the who inwas successfully had made emergency cockpit, aft overheard someone he believed landing Aviano, at the NATO airbase in It- appellant asking “Is it blank?” Id. was the aly. pertinent The facts were summarized as 1173; at appellant Capt 1287-88. The by follows the Court Appeals of Criminal in Schweitzer, egress aircraft, did not but opinion its first in this ease: instead elected to remain in the forward The at largely evidence trial was undis- cockpit discussing what to do with the puted as to place immediately what took videotape. recorded tragic before and after this aviation disas- Knowing that their aircraft would be Capt ter. appel- Schweitzer borrowed the immediately impounded and inventoried lant’s video mishap flight. camera for the mishap, due to the seeking not to It was to flying prior be his last mission have the videotape recorded “become an leaving duty, active and he desired to have during investigation they issue” knew a remembrance that would document for forthcoming, Capt Schweitzer ulti- family friends and what he did as a naval mately appellant, told the “Let’s take the 928; flight officer. Record at 1272-74. As tape.” 935, 1293, 1295; Record at Prose- Capt explained: Schweitzer cution Exhibit 2 Though at 1. both were I [Capt Ashby] asked over the weekend everything depicted uncertain of on the if I could borrow video videotape, Capt [the camera]. Schweitzer was aware that Basically I tape, minimum, wanted to take some low at a showed mis- level, level—not low footage hap but of basi- executing flaperon aircraft a [n5] roll cally flying. how we during ridgeline It was the a crossing leg on the first going and, last week we were flight, be there. I in separate segment, getting June, out in and I wanted to contained a him smiling scene of into the something have to have I holding so could show video camera in while it the air 200000250, 27, 2007). Ashby, 2. (N.M.Ct.Crim.App. United.States v. No. NMCCA June 235, 2007 CCA LEXIS 2007 WL 1893626 Record at 937. to that effect. it” or words Record at at himself. it back pointing appellant’s in the was made statement ap- This 938, handed Capt Schweitzer 939. Later, fully that the vid- aware camera, presence. appel- pellant the video inverted footage of his eotape contained tape and sub- recorded lant removed the segments crossing and other ridgeline unused place a new and in its stituted that such mishap flight, and worried 1294; 2 at 1-2. The Id. at PE tape. investiga- by “misinterpreted” would tape recorded placed the appellant then videotape to tors, gave the appellant air- exited the flight pocket and suit Schweitzer, subsequently de- who Capt craft, the video camera leaving behind by throwing it into a bonfire. stroyed it tape, along the unrecorded loaded with 938-40, appellant 1299. The Id. at carrying bag. Record the camera’s with tape’s destruction was advised 1294; 2. The recorded PE at at Id. at shortly thereafter. Capt Schweitzer pos- appellant’s videotape remained (4 destruction of this The existence and days to 6 during few the next session the attention of videotape only came to 1998), during which he and February 1998, once investigators August people that 20 learned crewmembers other immu- Seagraves received testimonial Capt mishap, flight a result of their had died as “the truth nity to disclose and elected initiated a government had the Italian everything.” Id. matter, about investigation into the criminal had military defense counsel Italian and *9-*13, Ashby, 2007 CCA LEXIS represent the crew- been hired/detailed (footnote omit- at *2-*3 2007 WL members, Investi- and that “Command ted). (CIB) con- had been gation [n6] Board” surrounding the remov- circumstances The Corps to look into by the Marine vened al, and eventual destruction concealment concerning and circumstances the facts specifications two resulted flight. their unbecoming an officer and a alleging conduct [FOOTNOTES] under Article UCMJ. gentleman 360-degree twist- flaperon A roll is [n]5 Ashby engaged alleged that specification first long axis of the about the ing maneuver unbecoming gen- and a an officer in conduct aircraft, during ridgeline performed often wrongfully conspiring with tleman crossings. justice by obstruct endeavor- Schweitzer authorized A is one of several [n]6 CIB investigation. The second ing impede an specified in the Manual methods Ashby engaged alleged that specification investigating Judge Advocate General unbecoming gentle- officer and a an conduct mishaps training significant operational or endeavoring impede by wrongfully man significant life that involve loss of and/or destroying by secreting investigation and/or 0208, § of See damage. Manual property forth Additional facts will be set evidence. (JAGMAN), Judge Advocate General the individual issues as our discussion 2004). (15 March Instruction 5800.7D JAG necessary. incident, proce- the CIB At the time of this contained guidance were dures and DISCUSSION JAGMAN, Instruction § 0209 the JAG 1990). (03 October 5800.7C I. [-] (on COURT THE LOWER mishap or WHETHER days after the Three to four 1998) THE THAT EVI- ERRED IN HOLDING February appellant the 07 about LEGALLY SUFFICIENT Capt DENCE WAS walking the mess hall with from A UNDER SUPPORT CONVICTION Capt Seagraves. When TO Schweitzer 133, OF UNIFORM CODE ARTICLE the recorded Capt Schweitzer described (UCMJ), FOR OB- MILITARY JUSTICE Capt Seagraves and asked his videotape to it, OR CON- OF JUSTICE they do with STRUCTION opinion to what should as OBSTRUCT JUSTICE. get rid of SPIRACY TO responded, “I would Seagraves

115 reviewing legal sufficiency for the did not tape believe that the would be evi- evidence, we take the facts in light the dence a criminal proceeding. most favorable to the Government and ask responds The Government given the whether permit those facts would a reason mishap nature of the and the actions of the able factfinder to find the all elements of the coconspirators two during charged the time charged beyond offenses a reasonable doubt. period, there was support- sufficient evidence Virginia, 307, 319, Jackson 443 U.S. 99 ing both of convictions. The Gov- 2781, (1979); S.Ct. 61 L.Ed.2d 560 United urges ernment that it is unrealistic to believe Turner, 324, (C.M.A. States v. 25 M.J. 324-25 Ashby was unaware that a criminal investiga- 1987). questions We review legal suffi tion forthcoming would be at the time of his ciency de novo. Chatfield, United States v. misconduct. (C.A.A.F.2009). 67 M.J. 441 The Court of Criminal Appeals determined issue, In analyzing we consider the direct and circumstantial evidence 133, UCMJ, the elements of Article conduct (1) supported findings that Ashby had reason unbecoming an gentleman, officer and a as to believe that there or would be a well as the elements of the underlying of investigation criminal proceeding or following fenses, Article § 10 U.S.C. 934 mishap, the acted with the (2000), justice obstruction of and Article specific intent to obstruct the due adminis- UCMJ, (2000), 10 U.S.C. 881 conspiracy. justice.3 tration of recently We reaffirmed that the criminal con sought duct punished by an Article Before this court argues that UCMJ, offense is the act of committing justice elements of obstruction dis were not honorable compromising conduct, regard met presented evidence by the Gov- less of whether underlying ernment. Specifically, conduct con he asserts that a stitutes an proceeding criminal offense was not under UCMJ. reasonably fore- (C.A.A.F. Conliffe, States v. seeable when he removed from 2009) aircraft, worst, (quoting Giordano, and at United States v. subjectively 163, 168, (1964)). believed that an C.M.A. investigation administrative C.M.R. Here, might however, occur. also contends that Government there chose to charge insufficient evidence he formed offense of specific intent impede conduct proceed- unbecoming criminal gentle an officer and a ing. argues He further man incorporating separate evidence did offenses not sufficiently agreement justice establish an be- obstruction of conspiracy, tween himself and Schweitzer to judge obstruct panel instructed the on the justice, where he “merely acceded to authori- elements of all offenses. three Where the ty relinquished when he videotape,” and Government incorporate separate chooses to support 3. (5) of these questions; 4, conclusions the lower Ashby court February learned on (1) following: 1998, Ashby's noted the statements to investigation by that he was under the Supervisor Flight the of at Aviano Air Base indi- Italian authorities and realized at that time that hit, Ashby cated that initiated; was of what he investigation may aware had some (6) other it, he where had hit and that serious concerns Schweitzer lacked squadron with candor would be raised regarding the regarding manner in which commander whether the video camera conducted; (2) flight Ashby the was during (7) and Schweit- mishap flight; had been used the cockpit immediately zer remained in the after testimony Schweitzer's Ashby, established that landing videotape to discuss the knowledge ongoing contents with full the of Italian and it, (which what and to do with investigations while their fellow crew- CIB could result in the immediately pursu- preferral members the charges), exited aircraft of criminal heard and acced- (3) protocol; Ashby ant to and Capt. Seagraves Schweitzer substi- ed to the of recommendation to camera, tape a get (8) tuted blank in the left the videotape; camera rid of the and Schweitzer aircraft, the tape and took recorded Ashby gave the with tape “get testified that him the to rid them; (4) it,” Ashby during agreement testified his first court- of was in with him to they replaced that destroy martial the reason tape, destroyed the record- tape the and the he with tape they ed with a blank specific one was because impede investiga- knew the intent to the Italian they subject that would be Ashby, *22-*32, to an AMB [Aircraft tion. LEXIS CCA Mishap Board] and would have to answer some 2007 WL at *6-*10. clearly sufficient UCMJ, that the evidence charge We find the Article into offenses Ashby’s convictions. support to military judge has instructed the and where offenses, we will of those the elements on finding supports a which Article sufficiency of the Evidence legal analyze the that there to Ashby had reason believe that UCMJ, by determining whether offense pending proceeding a criminal would be support- legally evidence sufficient there tape from the he removed against the him when upon instructed the elements ing all of (1) testimony that the includes: the aircraft military judge. required damaged and an badly plane was are: of The elements something; striking landing after emergency certain (1)the to do or omitted accused did during telephone a (2)Ashby’s statements circumstances, (2) these acts; the under and the incident indi shortly after conversation unbe- conduct omissions constituted acts or they may have he believed that cating that Manual gentleman. and coming an officer gondola to a that went a tower cable struck IV, Courts-Martial, pt. for really hard” get “drilled they would and that ed.) (MCM). (2008 59.b para. (3) it; testimony Ashby and Schweit that justice are: of obstruction The elements tape with the only the recorded zer not took act; (1) a wrongfully did certain accused handing it over to it before watch intent to against (2) person case of he did so authorities, a blank replaced it with but there that had to believe he reason whom (4) act admission tape; Schweitzer’s pend- proceedings be criminal or would when he left the to deceive an intent ed with (3) intent to so obstruct ing; he did with plane; in the tape containing a blank camera (4) under justice; and administration (5) wrong it was Ashby’s admission that and circumstances, conduct the accused’s did so that he to take discipline in the good to order prejudicial anyone it before he wanted to view because discrediting. or was service forces armed “nitpick” it. it and could else viewed IV, pt. para. 96.b. MCM peri- from the There is additional evidence conspiracy to obstruct The elements Ashby se- commenced when of time that od (1) into an accused entered justice are: until the time tape quarters in his creted person to obstruct agreement with another sup- destroyed tape that that Schweitzer (2) contin- agreement justice; and while reason to finding that had ports a exist, remained while the accused to ued criminal was or would be that there believe or his the accused agreement, to the party includes against him.4 This evi- proceedings for the performed an overt act coconspirator (1) 3, 1998, shortly February on dence that: object of the about the purpose bringing incident, Ashby and Schweitzer after the IV, para. 5.b. pt. conspiracy. MCM killed; twenty had been people learned (2) early as as learned and Schweitzer period that the time important note It is 4,1998, they under crim- February charged specifications was the two authorities; Italian investigation by the inal 3, 1998, the date of February limited commanding officer gave his Schweitzer date incident, from that but rather extended not used the they had the impression 14, 1998, date well after the through March (4) Ashby during flight; camera re- Therefore our tape’s destruction. going feared Italian that he admitted Ashby’s subjective the evidence as view of February Based early on jail as investiga- as criminal regarding possible belief evidence, factfinder a reasonable above the date of the incident. not limited to tion is pending, proceedings would be criminal was or urges adopt holding in Unit- Ashby that we (A.C.M.R. precedent. Gray, contrary See Unit 28 M.J. to this court's v. it is ed States 1989), Barner, (C.A.A.F. investi- an official act or which held that ed can an accused gation before must manifest 2001) ("[Ojbstructing justice where can occur justice. The guilty of of obstruction be found holding some law enforce 'believed that appellant only contrary Gray the lan- is not to only proof in military ... would be investi ment official MCM, requires guage which of (citation omitted). ”) gating actions.' his there to believe that the accused had reason could have found all of the of TARY elements ob- JUDGE’S DECISION EX- TO justice struction of in were met this case. PAND THE TERM “CRIMINAL PROCEEDING” TO INCLUDE OB- regard conspir With to the offense of STRUCTION OF FOREIGN CRIMI- acy, a reasonable factfinder also could have NAL PROCEEDINGS. beyond Ashby found a reasonable doubt with the with with him when with a with the bers had evacuated the aircraft in accordance Ashby and Schweitzer kept pit together after the other two crewmem- by agreed overt act in furtherance of that a criminal protocol. They blank with Schweitzer to thought then removed the tape videotape, tape proceeding one, until he left the aircraft. they and took the recorded and Schweitzer told Ash- quarters Schweitzer should discussed what to do remained obstruct tape, replaced and did take the committed in approached agreement. justice the cock nothing tape. tape an in it is that the accused knew or had reason to ings” they ing know that there would be offense of conduct above, the members were instructed that a struction of of the elements of the ^[6] gentleman. Ashby’s justice an officer and a must find that pending. Obstruction as well as the elements of the convictions for conduct unbecom- justice One of the elements of ob- MCM unbecoming under Article gentleman. of Ashby’s justice offense pt. “criminal IV, conduct met all underlies both para. an officer and As discussed 134, UCMJ, obstruction proceed- 96.b.(2). The MCM does not proceed- define “criminal him days about it several later. After dis ings,” cussing provide: but what to do does tape, Ashby with the eventually gave it to knowing Schweitzer Examples justice of obstruction of include going get he was rid it. There is no wrongfully influencing, intimidating, compels evidence the record which impeding, witness, injuring person or a a Ashby merely conclusion that acceded to acting charges on under chapter, an authority handing Schweitzer’s over the investigating officer under R.C.M. or videotape. We hold that the pre evidence party; a bribery, and means of intimi- sented at supports finding trial a that all of dation, misrepresentation, or force or conspiracy elements of were met. delaying threat of force preventing or com- Finally, regard with to the elements munication of relating information to a vio- legally there is suffi lation of criminal statute of the United cient evidence that committed the person States to a depart- authorized acts, charged as discussed above. There also ment, agency, or armed force of the United is abundant supporting evidence a conclusion engage States to conduct in investiga- or that, circumstances, under the Ashby’s acts prosecutions offenses; tions or of such or omissions constituted unbecoming conduct endeavoring to do so. gentleman. Ashby officer and a himself IV, pt. para. MCM 96.c. admitted that taking his actions in the video tape failing it hand over to the author trial, military judge Prior to denied wrongful. ities were captain As a in the Ashby’s prevent motion in limine to the Gov- Corps United States Marine who was the arguing ernment from the act of ob- pilot of an aircraft that had been involved in structing foreign investigation criminal an international incident which caused the support charge jus- could of obstruction of civilians, twenty deaths of conduct in military judge tice. The foreign ruled that concealing potential assisting evidence and proceedings criminal would fall under the its clearly destruction was conduct unbecom proceedings” definition of “criminal in the ing gentleman. an officer and a if MCM the Government showed that obstructing actions of the accused in such

II. proceedings directly prejudicial good discipline discrediting. THE order and or service WHETHER LOWER COURT ERRED Ultimately, military IN THE MILI- judge AFFIRMING the instructed 118 754-57, Parker, UCMJ, 94 134, 417 U.S. at in proceedings” “criminal that the term

panel against upholding In the statutes S.Ct. includes: challenge vagueness, the for a constitutional proceedings foreign criminal of obstruction had been nar- that the statutes noted Court of such investigations when obstruction or sup- by example and that content rowed investigation proceedings or criminal usage. The test to be by custom and plied efficacy upon of impact have a direct as: applied was articulated justice system criminal the United States good order being directly prejudicial by that simply means vagueness [v]oid Forces or discipline in the Armed responsibility should not attach criminal Armed directly to the being discreditable reasonably not under- where could one Forces. pro- contemplated conduct is that his stand sufficiency determining the of scribed. error, Ashby argues of assignment In this necessity of be a statute must the notice expansion an unwarranted that it is with light in the of the conduct examined include for- proceedings” to term “criminal charged. a defendant is which that argues He eign proceedings. criminal a contrary to both interpretation such (citation omitted); 757, 2547 Id. at S.Ct. 94 IV, 96, reading pt. para. which plain of MCM Frazier, 194, v. 34 M.J. see United States only in justice contemplates obstruction of (the (C.M.A.1992) question is whether 198-99 stat- of a United States criminal the context military would “no officer have a reasonable body of investigation, well as the as ute charged activities that constituted doubt” subject. The Government case law on the unbecoming gentle- an officer and a conduct that the offense of obstruction responds man). in- broadly interpreted to justice be should fairly that he cannot claim impedes foreign a criminal that clude conduct criminality of his conduct lacked notice of nothing noting that in MCM proceeding, the absence of the inclusion virtue of to federal or scope of the offense limits in the foreign proceedings MCM. criminal proceedings. criminal mil Undoubtedly, conduct of a United States discussion The fact MCM prevent itary designed to authorities officer foreign a include a reference to does not investigating from foreign an allied nation dispositive. not The proceeding is criminal involving its national soil a fatal accident on in the MCM discussion referenced examples military personnel may consti United States illustrative, merely not exclusive. See are a unbecoming an officer and tute conduct 60c(6)(c): IV, pt. para. “If conduct MCM See, e.g., v. Bai gentleman. United States any of the does not fall under (A.C.M.R.1989) (“It an accused ley, 28 M.J. 1007 134 offenses for violations Article listed hardly gainsaid brings that it discredit can be specification ... a listed this Manual of the United States upon the armed forces may allege used to the of Manual makes false statements when a soldier UCMJ, neither Article Because fense.” regarding officials foreign law enforcement 134, UCMJ, expressly prohibit nor Article the soldier is an offense in which involved foreign charging of a investi an obstruction Here, country.”). of the host with citizen gation, question becomes whether support the conclusion number of factors could notice that his conduct had sufficient taking had reasonable notice Levy, v. UCMJ. Parker violate aircraft, secreting mishap from 733, 755-66, 41 S.Ct. U.S. eventually providing quarters, it in his (1974). L.Ed.2d “get rid of it” was tape to Schweitzer discrediting and conduct unbe service both person process requires Due gentleman. and a coming an officer that an act is criminal before have notice fair Agreement of Forces The Status for it. NATO being prosecuted (NATO SOFA) (C.A.A.F.2003). the United States Saunders, between duty parties both Italy imposes a on notice examined the Supreme Court issue carrying investigations, collect- out assist context of Articles evidence, ing producing handing gondola victims who died in the incident to objects expe- over related to an offense.5 An testify during ag- the Government’s case Ashby’s position rienced officer in would or gravation. military judge limited the should have been on notice of the NATO testimony, permitting witnesses’ each witness such, provisions.6 SOFA As had no- (1) only identify to: himself or herself as a failing tice that his conduct to hand over a victims; testify relative of one of the videotape that he knew would have evidentia- knowing that not what videotape was on the ry value in an Italian investigation violated lingering questions regarding had left his or his official duties. Notice also arises from her loss. He concluded: dishonesty the fact that acts of and deceit are proffered I find that testimony prohibited by illustration in both Article See, three regarding lingering and Article witnesses their e.g., UCMJ. IV, (false 59.c.(2), pt. paras. MCM pass), questions to as what was on the (obtaining pretenses), under services false to be relevant. I also find that a reason- (false addition, swearing). and 79 com- able link testimony exists between such supports mon sense the conclusion that Ash- and the offenses [c]ourt. before the by was on notice that his conduct violated the probative I find the value of such testi- Ashby, UCMJ. We have no doubt that as a mony substantially outweigh danger pilot, seasoned officer and aircraft under- prejudice, delay of unfair confusion or stood under the circumstances his ac- this trial. poorly upon tions would reflect him as an officer and would discredit the service. We Vaia, Georgio The three witnesses were simply nothing find in the UCMJ or Wunderlich, Rita and Emma Aurich. Vaia presented by Ashby supports cases his nephew gondola testified he was the contention that the conduct in this case can- operator. He indicated that he had learned unbecoming not be sustained as conduct missing videotape about the because he fol- gentleman officer and a because the criminal investigation lowed the into the incident. investigation impeded foreign lingering ques- When asked whether he had rather than military.7 domestic or videotape, tions about the Vaia testified: you suffering family, When have a in the

III. you somebody dear, when very lose who is member, family a dear heavy however WHETHER THE LOWER COURT be, suffering may you try accept ERRED what IN AFFIRMING THE MILI- TARY happened; JUDGE’S DECISION PER- acceptance very TO has and that is MIT THE FAMILIES OF VICTIMS OF gradual, helped by knowing but it can be THE GONDOLA CRASH TO TESTIFY happened. what has ON SENTENCING. knowing affirmed that Vaia that the video- tape destroyed had been had made it difficult objection,

Over defense judge permitted family three get members of for him to closure. Agreement 5. ruling today Between the Parties to the North 7.Our is limited to factual situation Forces, Treaty Regarding Atlantic 133, UCMJ, the Status of before the court—whether an Article VII, 6(a), 19, 1951, para. June 4 U.S.T. unbecoming gentleman conduct an officer and a 1792, 199 U.N.T.S. 67. specification legally sufficient where the con- underlying charge incorporated by duct Although

6. there is no direct evidence in the reference as an Article obstruction of knowledge record that had actual of this justice charge, military judge’s where SOFA, provision dispute of the NATO there is no foreign instruction linked the obstruction of the agreement that he was aware of the as he ac- knowledged signed rights proceeding treaty criminal under that when he to conduct that was "direct- magistrate’s the minutes ly good Italian prejudicial discipline order and in the interrogation presence in the of his Italian coun- being directly Armed Forces or discreditable to February Additionally, Ashby sel on the Armed Forces.” deployment testified that he was on his second gondola Aviano the time of the incident. 120 the of which resulting from the offenses forty-three- or that her testified

Wunderlich guilty.” Rule for found friends accused has been of their husband and six year-old 1001(b)(4). (R.C.M.) Evi- gondola accident. She Courts-Martial killed in the were missing includes “evidence aggravation about the in that she learned dence testified that, any impact on ... press. She testified ... videotape psychological from the ... videotape had knowing that victim of an offense a result of ... who was the person as ” many lingering destroyed, she had Even if been accused.... Id. committed the give 1001(b)(4), [her] not questions “d[id] the evi- under R.C.M. admissible peace.” balancing of Mili- pass the test dence must (M.R.E.) 403. M.R.E. tary Rule of Evidence three witnesses. the final of the Aurich was relevant, may “Although evidence states family of her who the members asked When probative if value is substan- excluded its anybody were, “I have responded: don’t she danger of unfair tially outweighed by the all She affirmed anymore. They are dead.” issues, or mislead- confusion of the prejudice, daughter-in- forty-year-old son that her members, by considerations of ing the or Au- gondola in the accident. were killed law time, pres- needless delay, waste of or undue learned of the acknowledged that she rich the cumulative evidence.” Where entation of reports of missing videotape as she followed proper M.R.E. 403 military judge conducts a she investigation. When asked whether record, not overturn balancing on the we will knowing that questions lingering had find a clear abuse ruling unless we destroyed, responded: his she tape had been Here Stephens, 67 M.J. at 235. painful, and discretion. suffering. I’m It’s “Yes. Yes. military judge performed the lin- a M.R.E. suffering.” affirmed that I am She through- probative value balancing [her would “follow found “the gering questions test and outweigh did testimony substantially [she not] whole life because her] out of such they answered.” know how will be danger prejudice, of unfair confusion delay in this trial.” Immediately following the above testimo- panel ny, military judge instructed testimony argue that the does members: requirements of R.C.M. fails to meet or asked to redress are not invited [Y]ou 1001(b)(4), argue does that admission but family befalling any wrong the victims’ be- an abuse of discretion the evidence was your prop- perform rather to this case but effect of the evidence prejudicial cause the of the communi- representative role as a er ar- probative value. He outweighed far its adjudge appropriate ... an ty large to testimony “enflaming” and gues that the in this case. sentence victims, unfairly unnecessarily humanized the flight ... conduct of the [T]he responsible their portrayed him as the dam- responsibility for the deaths and deaths, beyond military judge’s and went already been the age to the aircraft have limited mandate. subject proceeding and are not of another Ashby’s characterization disagree with We you before for resolution. mili- testimony conclude that the of this his discretion tary judge did not abuse trial, So, again, during phase recognized military judge admitting it. The determining a sentence you will not be of the testimo- possible prejudicial effect damage the deaths or upon based either only substantially it to include ny limited the aircraft. missing videotape had on that the the effect or her ability process the witnesses’ military judge’s de review We testi- that the witnesses’ loss. He ensured aggra of evidence cision on the admission limitations in mony go beyond those did not of discre sentencing for an abuse vation at testimony any meaningful way. While the Stephens, 67 M.J. States v. tion. United all that (C.A.A.F.2009). prejudicial to the defense —after sentencing, “trial was At aggra- of evidence general purpose any ag may present evidence as to counsel unfairly preju- evidence was not directly relating to vation —the circumstances gravating form, testimony ing presence dicial. its restricted on the motion outside the straightforward. panel, was brief and rather Al- military judge denied the motion though that, the record reflects that the witnesses for a mistrial. He found while trial visibly during were emotional their testimo- counsel’s references to the fact that ny, they disruptively were not so. In its anyone did not tell about the form, testimony limited the admission of the court, based on evidence before the this was was not an abuse of discretion. “not an area that counsel needed to be ad-

dressing.” He also found that trial counsel’s reference to right invocation of his to IV. remain military silent was clear error. The WHETHER THE LOWER COURT judge went on to conclude that these errors ERRED IN SUMMARILY DISMISSING appropriately could be through addressed APPELLANT’S ARGUMENT THAT curative instruction. THE MILITARY JUDGE ABUSED HIS military judge The gave parties an DISCRETION WHEN HE DENIED opportunity to re-voir dire the members and THE DEFENSE MOTION A FOR MIS- required trial counsel to redact her state- TRIAL BASED ON THE TRIAL COUN- gave ments. He parties opportu- also SEL’S COMMENTS REFERENCING nity proposed to draft curative instruction. (1) APPELLANT’S INVOCATION OF The defense declined the offer to re-voir dire HIS RIGHT TO REMAIN SILENT TO panel suggested that additional lan- AUTHORITIES; ITALIAN AND HIS guage pro- be added to the Government’s GENERAL RIGHT TO REMAIN SI- posed curative instruction. The LENT WITH RESPECT TO NOT DIS- judge panel called the members back into the CLOSING INFORMATION ABOUT courtroom and instructed them: THE VIDEOTAPE. just I you want to Captain remind that During statement, opening her trial coun- Ashby has an right absolute to remain sel told the members that had admit- silent at all I you times. want to remind that anyone ted he never told about you any will not draw inference ad- though even he knew that there Captain Ashby any verse to from comment going investigation to be an into the by the trial opening counsel her state- incident. Ashby, She then stated that might suggest Captain ment that Ash- Schweitzer, Capt. Seagraves met and by right invoked his to remain silent. You they discussed what should do with the vid- disregard any are directed to comment eotape they twenty even after knew that may any trial counsel that have alluded to civilians had they been killed and after had by Captain Ashby. silence You must appeared prosecutor. before an Italian She against Captain Ashby any hold this went on to tell the members: reason, speculate as to this matter. prior appearance Even to that before this permitted You are not to consider that prosecutor, they Italian assigned were Ital- Captain Ashby may have exercised his ab- ian defense counsel. You will hear testi- silent, time, right solute to remain at mony by they these crew members that any purpose. as evidence for they right were told that had a to remain know, silent, you law, spent great As we deal similar to American and that yesterday talking time about the they right invoked that accused’s to remain silent. right Accordingly, to remain Cap- silent. Immediately following open- trial counsel’s required tain speak was not to to statement, ing requested the defense a re- anyone tape. Again, about the video to the panel cess and the members were excused. may extent the trial counsel have Trial defense counsel moved for a mistrial implied required speak that he was based on trial counsel’s comment about Ash- anyone tape, about the that was incorrect. by’s failure to disclose the existence of the tape right panel and his invocation of his individually polled remain The members were 915(a) holding silent. After an R.C.M. hear- and each indicated that would trial not let right remain silent. including his rights, impact his deliberations. comments counsel’s Moran, 301(f)(3); these instruc- M.R.E. military judge reiterated (C.A.A.F.2007). we Therefore conclusion of the evidence. tions at the M.J. military judge’s assessment with the concur military judge erred Ashby argues that the referencing comments trial counsel’s could that a curative instruction finding right to remain Ashby’s invocation of his arising from harm “egregious” alleviate Moran, improper. silent trial counsel improper comments that whether must now determine 186-87. We He during opening her statement. made justice miscarriage in a the error resulted suggested to the comments asserts that the error was of requiring a mistrial. As this something to hide members that he had dimension, we also must deter- constitutional compounded argues that the error was military the error and mine whether intro- the Government other evidence rendered it harmless judge’s curative efforts suggesting that he exercised duced at trial Chapman v. beyond doubt. The Government a reasonable right to remain silent.8 18, 24, 824, military judge’s curative 87 S.Ct. 17 responds California, 386 U.S. (1967) (“[Bjefore appropriate an remedial a federal con- instruction L.Ed.2d 705 harmless, the need for a mistrial. measure and obviated error can be held stitutional that it to declare a belief court must be able 915(a) military vests R.C.M. doubt.”). beyond a reasonable harmless a mistri to declare judges with the discretion question, we ask analyzing In necessary in interest “manifestly al when “ possibility a reasonable there is ‘whether arising justice because of circumstances complained of error] the evidence [or east substan during proceedings which ” the conviction.’ might have contributed to upon proceed fairness of the tial doubt 442, Paige, 67 451 v. M.J. United States However, rule the discussion to the ings.” Moran, (C.A.A.F.2009) 65 (quoting M.J. caution, are to noting that mistrials advises 187) (alteration circumstances, question is original). The urgent “under be used “totally 915 un- plain and obvious reasons.” R.C.M. not whether the members for Garces, Discussion; error; rather, 32 v. of a see United States of the the essence aware” “ (C.M.A.1991) (mistrial 345, ais ‘unimportant M.J. 349 it error is that was harmless miscarriage remedy prevent used to jury drastic everything else the consid- relation ” extraordinary justice). Moran, Because question.’ 65 on the issue ered mistrial, judges should nature of Evatt, (quoting Yates v. 500 U.S. M.J. at 187 taking remedial explore option other 1884, 391, 403, 114 L.Ed.2d 432 111 S.Ct. action, instructions. giving such as curative (1991), grounds other Estelle overruled on 244, Fisiorek, 247 States v. United McGuire, 62, 4, 72 n. 112 502 U.S. S.Ct. v. Evans, (C.A.A.F.1995); 27 States v. (1991)). 475, analyze 385 We 116 L.Ed.2d (C.M.A.1988). 34, will not re 39 We M.J. context of the trial counsels’ comments military judge’s determination on verse a Id. at 186. entire court-martial. absent clear evidence of abuse mistrial record, of the entire Upon consideration Rushatz, v. 31 United States discretion. beyond the error was harmless we hold that (C.M.A.1990). 450, M.J. 456 military judge The took a reasonable doubt. included immediate corrective action which a trial It law that is blackletter instruction, a curative giving the members accused’s may not comment on the counsel state- requiring trial counsel to redact her constitutionally protected of his exercise Capt. testimony M—did argument, Ashby that a friend support cites to the 8. of this his— (1) magistrate testimony that: he of the Italian about the destruction not learn investigation case on a criminal in this initiated February interrogated Ashby Capt. Seagraves the infor- came out with until 4, 1998, 3, 1998; (2) February on nothing Italian We in either the mation. find crewmembers; other and the Capt. testimony magistrate's M's that can day, Ashby signed a document and acknowledging on that Ashby's additional comment on construed as an subject of an that he was the right to remain silent. exercise of his investigation. cites also Italian criminal Ashby’s elapsed since years individually ten have Over ments, asking each member May on 1999. He was sentenced military judge’s trial. follow the he could whether on authority took action Janu- convening the members He also reminded instructions. at the was docketed The case ary 2000. about the evidence at the close of Corps on March Navy-Marine court evi silent. Absent right to remain absolute 4, 2003, thirty-three filing after December On pre contrary, members are dence to time, appellate enlargement of for an motions military judge’s instruc to follow the sumed Ashby’s be- a brief on counsel filed 12, defense Jenkins, M.J. tions. United Septem- answered on The Government half. (C.A.A.F.2000). conclude We for an filing six motions after ber following improp military judge’s actions The lower court issued enlargement of time. adequately cured the error er comment ease on June decision in this its initial beyond a reasonable it harmless rendered 2007, 2,970 eight years days such, appro not an a mistrial was As doubt. —after —over on fur- The decision Ashby was sentenced. Rushatz, 31 M.J. at remedy. priate on June remand was issued ther review after instruction, than rather (“Giving a curative 17, 2008. mistrial, remedy preferred declaring a is the have members curing error when court delay, period of significant Despite this evidence, long as the as inadmissible heard delay complain about initially Ashby did not to the prejudice instruction avoids curative Appeals. In its the Court Criminal before omitted). accused.”) (citation court, sponte, opinion, that sua June post-trial the issue of and addressed

raised 235, at Ashby, 2007 CCA LEXIS delay. V. The lower *123, at *42. 2007 WL THE LOWER COURT WHETHER that, delay in this case found while court IN NOT DISCRETION ITS ABUSED right speedy process his due denied A THAT SENTENCE FINDING egregious so appeal that review and MONTHS OF SIX INCLUDED WHICH adversely pub- affect the tolerating it would AN APPROVED AND CONFINEMENT integrity fairness and perception of the lic’s WAS DISMISSAL INAPPROPRIATELY justice system, pro- the due SEVERE. beyond a was harmless reason- cess violation *127-*129, 2007 WL doubt. Id. at able court rea- The lower at *42-*43. VI. his Ashby had never asserted that soned THE LOWER COURT appeal WHETHER right speedy to a review DISMISS- IN SUMMARILY ERRED merit. Id. at lacked assignments of error ARGUMENT APPELLANT’S ING The *128, at *43. court 2007 WL THE OF THE DESTRUCTION THAT on that, the case when it reviewed noted ON HAD NO EFFECT remand, VIDEOTAPE at that consider time it would OF JUSTICE ADMINISTRATION grant THE appropriate to be it would whether NO MATE- IT CONTAINED delay BECAUSE under Arti- discretionary relief for (2000). EVIDENCE. UCMJ, RIAL Id. 66(c), 10 U.S.C. cle VI., we V. and for Having returned further considered Issues the case was When review, affirm the Court is- and therefore reconsidered the no error the lower court find delay and reaf- Appeals. arising from the harm sue of Criminal in this error that the constitutional

firmed beyond a reasonable harmless case remained VII. 200000250, slip Ashby, NMCCA No. doubt. Ashby’s court noted 4. The lower op. at DUE PRO- APPELLANT’S WHETHER as- prejudice specific only allegation of BEEN VIOLAT- HAVE RIGHTS CESS —an prejudiced would sertion POST-TRIAL BY THE UNTIMELY ED by the moot court’s rehearing rendered RE- AND APPELLATE PROCESSING —was against error assignments of of his resolution OF HIS COURT-MARTIAL. VIEW him. Id. The court stated: appropriateness “We further review on sentence length delay find that the record, in this case and we will not disturb its conclu- findings does not affect the and sentence that delay sion that the findings did not affect the approved 66(c), should be under Article and sentence that approved. should be Nor UCMJ.” Id. do we fault the Appeals Court of Criminal failing Ashby’s employment address preju- Ashby argues Before this court argument, dice which upon was based clem- post-trial delay in his case violated his due ency materials submitted to convening process rights and was extraordinary so authority but argued was not before that granted the lower court should have him court. discretionary 66(c), relief under its Article UCMJ, authority. He also asserts that the agree We with the lower court that ignored lower court the materials submitted upon balancing the four factors outlined clemency

with request, his second which es- Moreno, United States v. 63 M.J. tablished that he employment suffered lost (C.A.A.F.2006), post-trial the unreasonable opportunities, travel, was unable to and suf- delay in this case pro violated anguish fered mental due delay. as a result of the right speedy cess to a post-trial argues The Government review and that the lower court appeal.9 ultimately length delay denying facially was correct un re- reasonable, urges triggering lief and that providing four-step relief inquiry for the delay in provide Ashby favoring Ashby this case would with balancing analysis. undeserving windfall. The second factor also favors as there legally are no supportable explanations for 66(c), UCMJ, vests in the delay. Judge See Diaz v. Advocate Gen Appeals Courts of Criminal authority broad (C.A.A.F. eral Navy, 38-40 findings to determine the and sentence that 2003); Moreno, 63 M.J. at 136-38.10 The approved. should be Toohey v. United third factor favors Ashby the Government as States, (C.A.A.F.2004). 60 M.J. 103 In did not right timely assert his to a review conducting its appropriateness sentence re until the Court of Appeals Criminal raised 66(e), UCMJ, view under Article a Court of issue, sponte, sua in its initial decision. Appeals Criminal has ‘“broad discretion to As prejudice factor, to the Barker Ashby grant deny or relief for unreasonable or has not sustained his of showing par- burden unexplained [post-trial] delay...'" United prejudice. ticularized After the ease was (C.A.A.F. Pflueger, States v. 65 M.J. 128 remanded, 2007) there remained no meritorious is- (quoting Bodkins, United States v. 60 may sues which (C.A.A.F.2004)) (alteration generated have concern M.J. 324 in Ashby’s ability about original). present to power “The defense or review a case for favorable matters at a appropriateness rehearing. Ashby sentence ... is has vested Courts of not suffered Appeals, oppressive Criminal incarceration. [this] Court, which is limited to There is no errors of indication that law.” suffered Lacy, United anxiety States 50 unusual hardship M.J. separate 288 from (C.A.A.F.1999). Here, the Court normally experienced of Criminal that by an individual Appeals properly performed 66(c), its awaiting appeal. The fact that did assessing 9. facially defendant, whether charged unreasonable counsel applies to the violation, delay process has resulted in a due equally we privately publicly assigned retained or factors, weigh following — Brillon, four U.S.-, as set forth in counsel. Vermont v. 129 514, 530, Wingo, Barker v. 1283, 1292, 407 U.S. 92 S.Ct. (2009). S.Ct. 173 L.Ed.2d 231 The (1972):(1) length 33 L.Ed.2d 101 noted, however, Court that this rule was not (2) delay; (3) delay; the reasons for the delay resulting absolute systemic and that from a appellant’s right timely assertion of the review public system breakdown in the defender could (4) Moreno, appeal; prejudice. 63 M.J. charged impact to the state. Id. The at 135. jurisprudence Brillon decision on this court’s argued appeal was not briefed nor in this and it Supreme recently The Court held appropriate that is therefore not for the court to ad rule, general delay that a caused a defendant’s dress at this time. length prejudice from delay presume until post-trial the issue of not raise cuts Toohey, identified issue at 363. As delay lower court after the alone. by the that he was harmed against his claim such, considering all the circumstances job lost claim that he delay. belated case, that this error we conclude inability to a result of his opportunities as doubt no a reasonable beyond harmless does appellate leave status travel due relief is warranted. arising from actionable harm not establish delay.11 VIII. not estab- Despite the fact has analysis, under the lished Barker prejudice THE LOWER COURT WHETHER factors, balancing weighing the four (1) AP- FINDING THAT ERRED IN delay agree with the lower court that we NOT TAINT- CASE WAS PELLANT’S process rights to a Ashby’s due violated UN- ED BY OR APPARENT ACTUAL appeal.12 speedy post-trial review and INFLUENCE; COMMAND LAWFUL Having process found a due vio WAS THAT LTGEN PACE AND lation, grant relief unless find will we we TO ACT AS CON- DISQUALIFIED NOT has met its of show the Government burden BY VIRTUE OF AUTHORITY VENING error is harmless ing the constitutional TYPE 3 TYPE AND ACCUS- BEING A doubt. United States v. beyond a reasonable ER. (C.A.A.F.2009). Bush, 96, 102 We M.J. question of review de novo the whether the focus of a gondola incident was beyond a reasonable doubt. error is harmless military at- international and great deal of Allison, 63 (citing States v. Id. at 102 United such Normally, aircraft incidents tention. (C.A.A.F.2006)). consider M.J. We Aircraft Mis- call for an as this one would assessing totality of the circumstances case, (AMB), Lieu- but in this hap Board process is harmless the due violation whether Gen.) (Lt. Pace, who was tenant General at 102-03. beyond a reasonable doubt. Id. Commander, serving as the determining recently have noted We Atlantic, and Com- Corps Forces Marine harmless process error was whether due mander, Corps Marine United States necessarily in beyond a reasonable doubt In- Europe, a Command Forces convened analyzing “prejudice,” the case for but volves (CIB) dep- by headed his vestigation Board “prejudice” separate analysis for Gen.) DeLong. (Maj. Major prejudice uty, General consideration of distinct from the factfinding factors. Id. at 103. as one the four Barker was an administrative The CIB entity. judicial body, prosecutorial or not a carefully the entire Having examined mishap air- that the The CIB recommended that, record, court agree with the lower we disciplinary ad- subject of or crew be the circumstances, totality of the under the Lt. Gen. Pace ultimate- ministrative action. beyond a rea delay was harmless post-trial general court- charges to a ly referred the Finding convincing evi doubt. no sonable record, martial. we will not prejudice dence of but, Ashby's inability as we arising to travel prejudice alleviate Ashby from did not claim 133, UCMJ, convic- the Article opportunities have affirmed tions, employment before the lower lost difficulty may may not address the during Court and In his brief before this court. obtaining security Un- may clearance. a have in a argument, our attention to oral called case, letter of this der the circumstances employer, potential December dated letter from specific prejudice under Unit- 17, 2005, does not establish clemency with which he submitted his Jones, (C.A.A.F.2005). M.J. 85 ed States the conven- when the case before materials ing authority letter does not a second time. The Toohey, company specifically would have States v. state that the 12. See United does, (C.A.A.F.2006) weigh (instructing on how 214. It howev- if he had DD hired er, delay period is when the such travel and Barker was unable factors note perception adversely public's affect the government could it "find it difficult to obtain a would justice system). Obtaining 214 would fairness security a DD clearance.” sions, granted

This issue involves com- recommendations of the CIB. plaints by of unlawful command influence —con- These conversations were monitored Lt. CIB, cerning actions of the as well as some Gen. Pace’s All of SJA. Lt. Gen. Pace’s external investiga- Maj. actions taken outside the suggestions DeLong Gen. were to separate and, tion —and his claim instance, that Lt. Gen. clarify issues in one Lt. Gen. disqualified Pace serving from as the suggested Pace two areas in- for additional authority convening in this case because he Maj. vestigation. DeLong Gen. also received 601(c). was an “accuser” under R.C.M. As to phone numerous calls from other senior offi- claims, adopt following these we relevant seeking progress cers information about the facts, by military judge. as found CIB, including at least one call from the Commandant Corps. of the Marine 4, 1998, February day On after the accident, gondola Corps at Marine Air Sta- CIB, During the course of the there was tion, Point, Cherry Carolina, North Lieu- coverage intense international media (Lt. Col.) Watters, tenant Colonel gondola political incident and unsettled rela- Commanding Officer of the unit that had Italy. tions between the United States and preceded Ashby’s unit the rotation at These issues were known the CIB mem- Aviano, advised all of the officers investigation bers. Also while the CIB squadron any to make flight low-level vid- Gen.) ongoing, Brigadier (Brig. General Bow- eotapes “disappear.” from Aviano Lt. Col. den, Wing the Assistant Commander for the Watters was relieved of his command on 2d Wing Maj. Marine Aircraft Gen. 6, 1998, February speech because of his to Ryan’s deputy, investigation conducted an the officers. Cherry Prowler aircrews at Point to deter- learning After speech of Lt. Col. Watters’s mine systemic problems whether there were flight the existence of video of a low-level with following flight aircrews not rules earlier, Maj. several Ryan, months Gen. flights. for part low-level As of this investi- commander of the 2d Wing Marine Aircraft gation, each aircrew member was read his or Point, Cherry at addressed all of the air- her 10 U.S.C. crews from the Prowler communities (2000),rights possible duty. dereliction of Cherry Point at meeting an all-officers 21, 1998, February Between and March (AOM). During Maj. meeting, Gen. copies draft report of the CIB’s Ryan implied mishap that the aircrew caused sent to Lt. Gen. Pace for his review and intentionally the accident breaking and were 10, 1998, comments. On March the final by flying rules too low. perceptibly He was report of the CIB was submitted to Lt. Gen. upset during meeting, and accused the Pace and others for their review and action. community Prowler violating as whole of Each member of the CIB affirmed that his or flights rules on low-level (“flathatting”), and findings, opinions, her and recommendations punishment threatened them with for violat- were not influenced contacts with ing flight Maj. Ryan gave rules. Gen. simi- commands, superior exception with the of speeches lar days. over the next several He testimony those issues raised the of one specifically never disciplinary addressed member.13 proceedings against aircrew, mishap the appropriate what would be an punishment in began drafting Lt. Gen. Pace an endorse- case, the or whether fellow aviators should report. composed ment to the CIB’s He it testify in the case. guidance legal with the of his counsel. The Maj. Lt. DeLong Gen. Pace and Gen. had endorsement stated Lt. Gen. Pace’s intent to virtually daily telephonic 32, throughout UCMJ, contact convene Article 10 U.S.C. (2000), the duration of the investigation CIB. These conversa- “to consider proposed findings, tions concerned charges involuntary conclu- whether such as man- members, (Col.) B, ports. Maj. 13. One of the CIB DeLong apprised Colonel Gen. was complaint testified that some members of the CIB had con- and told the CIB members not to be frequency pro- cerns about the and number of concerned about what others outside the Board posed changes being say report. offered to their draft re- wanted them to in their court-mar- in his first acquittal Ashby’s homicide, ter damage to negligent slaughter Italy to tial, Ambassador the United and dere- property, government private and at the verdict. surprised he was that stated general to a referred duty should be liction of de- conference, Clinton President press In a mishap aircrew. against court-martial” Ital- acquittal, but on to comment clined news headquarters issued Pace’s Lt. Gen. his expressed D’Alema Minister ian Prime announcing these recommendations release verdict. disappointment with the agreement Pace’s Lt. Gen. that the cause principal conclusion CIB’s Command Influence Unlawful the aircrew the fact that was the accident of unlawful claim address We first authorized. flew lower than that argues influence. command 1998, DeLong Maj. Gen. March On CIB board finding that the supports record at which he conference press conducted pro- prosecutorial with was so interwoven During that findings. CIB’s announced the prefer- it was a “default cess of case conference, incorrectly stated press prohi- fall outside should not ral” and marked on system was cable gondola influence. command against unlawful bition no There is the aircrew. to charts available leadership exerted argues that senior He also mischaracterization this indication that potential influence over command unlawful stat- He also than a mistake. anything other by creating an overall ease witnesses mishap was aircrew that the cause environment,” following ed in the “chilling conference, Maj. Gen. press (1) Maj. After the error. Maj. Ryan and Gen. specific actions: replaced unit that had DeLong with the amounting met speeches, DeLong’s public Gen. meeting, he At Ashby’s unit at Aviano. Appellant” to “public condemnations aircrew opinion that the expressed Appellant would his whom from pool of aviators (2) witnesses; Bow- “flathatting.” Brig. Gen. defense select crews; investigation of other Prowler den’s preferred charges original The Capt. (3) comments the Commandant’s members on mishap against the aircrew four his e-mail to Marotto; Triplett’s Col. 24,1998, Gunnery Sergeant Ciarlo. March to make advising his command command session initial The Article this mess.” “drug into they [sic] are not sure day, Capt. The next April held on established that the Ashby further contends Marroto, assigned to Ash- an aviator Howard of unlaw- appearance give the case facts in his unit, the Commandant by’s with met ful command influence. office. The Commandant Washington, D.C. Ashby has responds that mishap would be The Government crew expressed that true, that, if would any facts wrong identify they anything failed did disciplined if his court- fairness of question they need to be into guilty, call “if someone reject urges us to both is a friend of martial. Government Capt. Marroto punished.” administra- to hold that Schweitzer, invitation though particular- Appellant’s Ashby and of a claim can be basis May proceedings Col. tive On ly close to either. The Gov- influence. of Marine unlawful command Commanding Officer Triplett, the relating events that all of the message response to a in this e-mail sent court-martial, military the Ashby’s first In inappropriate handle how to informing him concept of unlawful that the judge concluded counsel. by the defense discovery requests to actions apply did not command influence CIB, during which the by individuals charges taken original the referred Lt. Gen. Pace board, and, administrative 10, purely was a July on Ashby and Schweitzer against result did not nonetheless, decision CIB’s the preferred charges were 1998. The additional conclud- He further they from outside influences. after Ashby and Schweitzer against insuffi- presented had the defense charges. Af- ed original arraigned on were 128

cient evidence of unlawful chapter command influence may attempt to coerce ... or influ- shifting to warrant proof the burden of to the ence the action of a court-martial or any and, Government military on the issue other alternatively, any tribunal or member there- of, beyond reaching he was findings convinced reasonable doubt or sentence in ” any charges case.... against Ashby appearance Even the mere were free of unlawful may actual command influence apparent from or be “as dev- unlawful command astating military justice to the system court-martial, influence. as second manipulation actual any given military trial.” judge findings re-affirmed his Ayers, 85, United States v. 54 M.J. 94-95 from the first regarding court-martial (C.A.A.F.2000) (citation quotation marks unlawful command allegations. influence omitted). “repeatedly This Court has con- The Court of Appeals adopted Criminal demned unlawful command influence direct- military judge’s findings of fact. Ashby, against ed prospective Gore, witnesses.” 60 235, *88-*89, 2007 CCA LEXIS at 2007 WL M.J. at 185. 1893626,at *29. agreed The court generally military with the judge’s position that, be- An accused has the initial burden cause the CIB merely a factfinding enti- raising the issue of unlawful command ty and was not involved the court-martial influence. United Stombaugh, States v. 40 proceedings, the principle of unlawful com- (C.M.A.1994). M.J. 213 This burden at

mand applicable influence to it. Id. which, true, trial is to show facts if constitute *91, at 2007 WL at *30. None- *90— influence, unlawful command and that theless, the court beyond was convinced alleged unlawful command influence has a reasonable doubt that there was no unlawful logical court-martial, connection to the any command stage pro- influence potential terms of its to cause unfairness in (1) ceedings, noting: the lack of the proceedings. evidence United Biagase, States v. (C.A.A.F.1999). that Lt. Gen. acted 50 Pace with the M.J. intent to appeal, On “‘(1) influence which, must court-martial defense show proceedings; and facts if (2) true, constitute Ashby influence; the fact that unlawful had not command shown that (2) proceedings unfair; show alleged other statements ac- (3) show that officials, the unlawful leadership tions of command made or taken ” influence was the cause of the response unfairness.’ gondola tragedy, spe- had Simpson, States v. negative cific direct or impact on court- (C.A.A.F.2003) (quoting Biagase, 50 M.J. at process. *91-*94, martial Id. at 2007 WL 150). 1893626, at *30-*31. The lower court con- that, nonetheless, cluded alleged no unlawful We conclude has failed command influence affected the instant which, true, show facts if constituted un court-martial, as: acquitted lawful command His influence. claims re original all of the charges him; against garding predicated the CIB are on communi (2) he court-martial, had not shown that this cations between the members the CIB and separate which was and distinct from the various However, senior officers. original court-martial, was in any affected which, true, has failed to show facts if would way by unlawful command influence. Id. at demonstrate that the CIB members were *94-*97, 2007 WL at *31. wrongfully influenced. is asking us to Unlawful command influence often has speculate pressure on placed on members of been referred to as “the enemy mortal the CIB as a result of the attention that the military justice.” Gore, United States v. 60 military gave to this case. speculation Mere (C.A.A.F.2004) (citation M.J. that unlawful command influence occurred omitted). quotation 37(a), marks specific because of a set of circumstances is 837(a) (2000), provides, U.S.C. not sufficient. has failed to show that part: in relevant person subject “No to this military senior officials’ in interest true, unlawful which, constitute official, if would facts proper, than anything other was CIB quality CIB members completing a when the lawfully directed command influence and investigation.14 thorough underlying the and the conduct unaware of were charges. current un Ashby’s claim of regard to With arising from the influence lawful command Accuser Issue officials, in military by senior other actions convening a question of whether The Commandant, Ashby has not cluding the 1(9), Article under authority is an “accuser” who decid any specific witnesses pointed to 801(9) (2000), ques alleged is a UCMJ, testify because of 10 U.S.C. not ed any military or by senior officials statements de novo. See we review tion of law that that the court-martial specific facts other Conn, 6 M.J. United States by command unlawful process was tainted 1(9), UCMJ, an (C.M.A.1979). Article Under publicized highly of the Because influence. (1) signs and “who accuser is an individual: incident, it is un of international nature (2) directs that charges”; “who swears military offi many senior derstandable that by signed sworn to nominally be charges in the after involved publicly became cials accuser]”; has or “who [type another two accident. investigation of the math interest than an official interest other However, evidence is no direct there [type three of the accused prosecution improp those officials the actions a may not convene An accuser accuser].” Ashby’s court-martial. erly influenced court-martial, may he nor special general or the facts this also hold that We R.C.M. charges to a court-martial. refer of unlaw appearance not create case did 601(e). Convening authori 504(c)(1); R.C.M. addressing influence. ful command referring disqualified from “are not ties com appearance unlawful whether in the same participation charges by prior particu in a has been created mand influence they as accus have acted except when case consider, situation, objectively, “the we lar 601(c) Discussion. er.” R.C.M. justice in the of fairness perception a through eyes of system as viewed convening Ashby argues that public.” United of the reasonable member (C.A.A.F. Pace, been Lewis, should have authority, Lt. Gen. States v. 2006). of unlaw appearance convening find the We will serving as the disqualified from objective, “an influence where ful command “ac was an ease because he authority in this observer, of all fully informed disinterested 1(9), Article definition cuser” within the circumstances, harbor a would the facts Pace that Lt. Gen. Ashby contends UCMJ. of the the fairness about significant doubt he essen because “type two” accuser was circum Id. Under these proceeding.” process preferral tially engineered mili stances, senior made the comments identifying influencing the CIB and through gondola the aftermath tary officials in of the CIB in his endorsement charges in the official involvement accident and their ultimately charges that report same —the not reason the incident could investigation of for asserts preferred. member by a ably perceived disinterested functional report was the warding CIB influence improper command public as charges to be specific directing equivalent of proceed anof unfair otherwise indicative or Lt. Gen. argues that also preferred. He ing. virtue three” accuser “type Pace was matter, note final we As a in the CIB involvement deep personal filed charges that were acquitted on all Ash- towards predisposition proceedings and recommendation, issued its the CIB after responds guilt. Government by’s con- of nor neither aware the CIB act disqualified from not Pace Lt. Gen. underlying the the conduct sidered was no authority, as there convening ing as therefore charges. It acting improperly that he was allege evidence Ashby is unable surprising that proceeding, but find of an administrative context adopt that unlaw- rule We decline to blanket did not. it that in case exist in the can influence never ful command 130

anything capacity Gordon, but his official taking 255, States v. 1 C.M.A. 2 C.M.R. 161 regarding (1952); mishap actions the incident. attempted where the accused convening blackmail the authority, United Ashby’s court-martial, In first the Jeter, (C.M.A.1992); States v. 35 M.J. 442 judge found that Lt. Gen. Pace did not “di- and where the potentially inap- accused had preferral rect” any particular the of charges propriate personal contacts with the conven- against Appellant though even he forwarded ing authority’s fiancée, Nix, United v. States report the for the drafting charges CIB of (C.M.A.1994). 40 M.J. 6 and specific charges. mentioned some The military judge noted that similarity the be- carefully We have reviewed asser charges tween the mentioned in the endorse- tions, materials, findings record and the ment to charges the CIB and the ap- that agree of fact. We with the Court of Criminal peared charge on the sheet was a result aof Appeals that Lt. Gen. Pace took no actions legal review of the CIB. He found that also equivalent directing charges that nominal Lt. Gen. Pace’s disposition interest ly signed be and by sworn to another. Lt. allegations preferred and charges anwas Gen. action in forwarding Pace’s the CIB to only. interest In Ashby’s official second servicing legal office for consideration court-martial, military judge ruled that appropriate charges was consistent with the Lt. Gen. Pace had no interest in the current performance of his duties as a commander. charges other than an official one. presume We legal that the properly officers performed professional their duties which in Addressing this appeal, issue on the lower independent cluded review of the evidence court concluded that Lt. Gen. Pace was nei- preparation and only those charges for “type ther a two” nor “type three” accuser they which probable determined exist cause regarding original charges preferred ed. See Article 10 U.S.C. 834 (1) against Ashby, since: there was no credi- (2000) (imposing duty judge on the staff ble evidence that Lt. Gen. Pace “directed” prepare advocate to convening advice to the charges specifically preferred; and authority charge before a is referred to a the evidence established that Lt. Gen. general court-martial); United disposition Pace’s interest of the alle- Masusock, 32, 35, 1 C.M.A. gations C.M.R. preferral charges against Ash- (1951) (citing the presumption only public that a an “official” one he did charged particular officer with a duty not has abandon his neutral role become an performed properly); it Ashby, United States v. Ro “accuser.” 2007 CCA LEXIS at land, (“We (A.C.M.R.1990) 31 M.J. *65-*66, *70-*74, 2007 WL *21- presume, will in the absence of *23. evidence contrary, judge the staff advocate determining test for whether a duties.”). properly discharged his In this “ convening authority is an accuser is ‘wheth light, Lt. Gen. Pace did nothing to him make closely er he was so connected offense addition, a nominal accuser. claim any person a reasonable would conclude that that he a “type two” accuser is diminish ” personal he had a interest in the matter.’ ined particular case of these charges, as Voorhees, United States v. 50 M.J. 499 they investigated by CIB, were not were (C.A.A.F.1999) (quoting United States v. encompassed in Lt. Gen. Pace’s forward Jackson, (C.M.A.1977)). ing CIB, endorsement to the inde “Personal interests relate to matters affect pendently preferred. Ashby has failed to ing the convening authority’s ego, family, and show acts Lt. Gen. Pace that would personal property” and convening “[a] au “type make him a two” accuser. thority’s expression dramatic anger to wards an might accused disqualify also Concerning Ashby’s claim that Lt. if it commander personal demonstrates ani accuser, Gen. Pace a “type three” mosity.” Id. We have personal found a record personal contains no evidence of inter where, example, interest convening est or bias part on the of Lt. Gen. Pace such authority case, is the victim in the that he was transformed into a de facto

131 tually authority” of a commander in- unfettered Although Lt. Gen. Pace was accuser. jurisdiction). special investigation exercising court-martial preliminary in of the volved case, appears to have been whol- his interest authority’s convening hold that We in an incident and the ly official. Interest 133, UCMJ, Article decision to refer investigation personal not is thereof is —it court-martial, general a rather charge to responsibility of a commander. Sim- fact the forum, not an abuse of his than a lesser was ilarly, frequency of Lt. Gen. Pace’s con- earlier, noted the matter discretion. As we tact or the number of times with the CIB was dis- of the destruction of report the draft do not that he reviewed CIB original charges had been covered after the personal professional a rather than a reflect referred, separate charge alleging a vio- charges Again, we note that these interest. UCMJ, preferred. was lations of Article Ashby from outside the CIB. has stem Pace directed that the Article Lt. Gen. failed to show that he is entitled to relief as UCMJ, conjunction charge be tried in with to issue. However, original charge. at his initial

trial, joinder Ashby to consent to the refused 133, UCMJ, charge, Article and Lt. IX. of the Ashby Pace withdrew it. was therefore Gen. THE WHETHER LOWER COURT 133, UCMJ, specifica- aware that the Article ERRED THAT THE IN FINDING CON- separately tions could later be referred —and DID VENING AUTHORITY NOT they were. IN FAIL- ABUSE HIS DISCRETION 133, UCMJ, specifi- the two Article Since THE ING TO WITHDRAW ARTICLE initially cations were referred before 133, UCMJ, REFER- CHARGE FROM original charges, it acquitted on the RAL ATO GENERAL COURT-MAR- say difficult to the re-referral TIAL APPELLANT AC- ONCE WAS UCMJ, any way charge was in Article QUITTED OF THE ORIGINAL retaliatory. Ashby’s allegation of bad faith is CHANGES. Lt. Pace unfounded. We conclude that Gen. error, assignment In his final of referring acted within his discretion that, Ashby argues given Lt. Gen. Pace’s 133, UCMJ, charges general a personal disposition involvement in the court-martial, where was a commis- it, case, pressure surrounding the media charges officer and the involved ob- sioned acquittal original charges, Lt. Gen. on the justice in investi- of an exhaustive struction of the Article Pace’s referral twenty people and gation into the deaths of charges general to a court-martial was bad damage property. extensive of discretion. faith and constituted abuse that, considering responds The Government DECISION a commissioned officer and significant charges required

that the investi affirm the decision of the United We authority’s gations, convening decision Navy-Marine Corps Court Crimi- general refer the case to a court-marital Appeals. nal improper. 306(b) “[a]llegations provides that R.C.M. STUCKY, (concurring): Judge disposed of ... at the of offenses should be judgment, and in I concur in the Court’s ” appropriate disposition.... level of lowest virtually Judge all of Erdmann’s exhaustive However, under R.C.M. 306 and R.C.M. only my separately I write to note opinion. convening authority exercising general I, understanding the discussion of Issue jurisdiction court-martial has wide discretion respect and to state a reservation with options in dis- among variety to choose Issue VII. referring posing charge, including I, opinion respect as the lead With to Issue charges general to a court-martial. See notes, incorporate 407; elected to Dinges, 55 M.J. the Government United States v. R.C.M. justice (C.A.A.F.2001) existing offenses of obstruction (discussing the “vir- 314 (Article 134, Military underlying Uniform Code of Jus- relates to the elements of the (1994)) (UCMJ), § tice U.S.C. offenses. (Article 81, conspiracy justice to obstruct VII, respect to With Issue consistent with (1994)) 10 U.S.C. into the Arti- Bush, position I took United States v. (1994), cle U.S.C. question application “public per- I charge unbecoming of conduct an officer and ception” Toohey, standard of States v. gentleman. military judge instructed (C.A.A.F.2006) IT). (Toohey 63 M.J. 353 See the members on the elements of those under- Bush, (C.A.A.F.2009) 104-07 offenses, lying and the Court of Criminal J., (Ryan, J., joined, Stucky, with whom con- Appeals analyzed legal the issue of sufficien- However, curring judgment). in the I com- cy in terms. I do not those understand the pletely agree opinion’s holding with the lead opinion holding lead as Appellant requisite has made the did, judge required to do as he but showing prejudice Wingo, under Barker v. simply applying law as of this case as we 514, 530, wholly legal found it. I concur 407 U.S. 92 S.Ct. 33 L.Ed.2d with the (1972). sufficiency analysis opinion of the lead as it I therefore concur. notes to members ernment an e-mail Group sent Air un- conduct before the command, ‘You need to the CIB occurred cautioning them: charges derlying You don’t the two on this issue. your people brief light. He mess.” came to into this drug [sic] want to be

Case Details

Case Name: United States v. Ashby

Court Name: Court of Appeals for the Armed Forces

Date Published: Aug 31, 2009

Citation: 2009 WL 2766741

Docket Number: 08-0770/MC

Court Abbreviation: C.A.A.F.