Rule for Court-Martial 905 explains the rules about motions generally and subpart (a) states that, “A motion is an application to the military judge for particular relief. Motions may be oral or, at the discretion of the military judge written. A motion shall state the grounds upon which it is made and shall set forth the ruling or relief sought. The substance of a motion, not its form or designation, shall control.”
R.C.M. 905(b) sets forth that “Any defense, objection, or request which is capable of determination without the trial of the general issue of guilt may be raised before trial.” There are tactical considerations as to whether or not a defense attorney should file a pretrial motion or wait until trial to spring the issue as an objection. However, some motions MUST be brought prior to trial or they can be waived.
Those motions that must be brought prior to the entry of pleas or they are waived are:
- Defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, investigation, or referral of charges;
- Defenses or objections based on defects in the charges and specifications (other than any failure to show jurisdiction or to charge an offense, which objections shall be resolved by the military judge at any time during the pendency of the proceedings);
- Motions to suppress evidence;
- Motions for discovery under R.C.M. 701 or for production of witnesses or evidence;
- Motions for severance of charges or accused;
- Objections based on denial of request for individual military counsel or for retention of detailed defense counsel when individual military counsel has been granted.
R.C.M. 905(c) lays out that in motions’ practice, the default burden of proof on any factual issue the resolution of which is necessary to decide a motion shall be by a preponderance of the evidence. Further, the default burden (which side has to carry that preponderance of the evidence standard) is on the party who is raising the motion, known as the “moving party.” The rule provides that, “Except as otherwise provided in this Manual the burden of persuasion on any factual issue the resolution of which is necessary to decide a motion shall be on the moving party.
For certain motions, even when raised by the defense, the prosecution bears the burden of persuasion. Those motions are a motion to dismiss for lack of jurisdiction, denial of the right to speedy trial under R.C.M. 707, or the running of the statute of limitations, and in which case, “the burden of persuasion shall be upon the prosecution.”
Generally speaking, “A motion made before pleas are entered shall be determined before pleas are entered…” However, “the military judge for good cause orders that determination be deferred until trial of the general issue or after findings, but no such determination shall be deferred if a party’s right to review or appeal is adversely affected. Where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record.”
FAILURE TO RAISE MOTIONS
R.C.M. 905(e) explains that if certain motions are not raised before the entry of pleas (when the attorney of record declares formally and on the record what is the accused person’s plea to each specification, i.e., not guilty to all charges or guilty to one but not guilty to others). A military judge can “for good cause shown” grant relief from this waiver, which means that if the attorney failed to raise the motion prior to the entry of pleas but has a legitimate reason that he or she can explain to the judge, the judge can decide to entertain the motion even though it otherwise would be waived because it had not been raised in a timely manner. Notwithstanding the military judge’s ability to grant relief from the waiver, if the motion is not raised at least before the court-martial is adjourned (officially concluded), then failure to raise the motion during the trial will constitute waiver of the motion.
Waiver of a motion is one of the most dangerous aspects of having inexperienced counsel at the trial level because waiver is final and such motions raised for the first time on appeal will not provide relief and will not change the outcome of the appellant’s conviction or sentence.
Some motions are never waived, even if not raised at the trial level. Those motions include a challenge to the jurisdiction of the court.
MOTION TO CHALLENGE JURISDICTION OF THE COURT
Issues can arise that call into question whether or not the military has jurisdiction to prosecute a given person. The most evident example in recent military practice was the challenge that Master Sergeant Timothy Hennis’ attorneys waged on his behalf. Master Sergeant Hennis had retired from active federal service and was collecting military retirement pay. After contemporary DNA testing found that Master Sergeant Hennis’ semen was collected from the vaginal swab of the adult decedent, government prosecutors used Article 2(a)(4), U.C.M.J. to bring Master Sergeant Hennis back on orders to face prosecution for murder of multiple individuals in the same family (a mother and her children). Though several issues were litigated with great rigor, perhaps none more so than the challenge to the jurisdiction of the court-martial over Master Sergeant Hennis.
WHAT CONSTITUTES JURISDICTION OVER THE PERSON
Jurisdiction over the person is referred to as “in personam jurisdiction” and is linked to an overt expression where the military has jurisdiction. That nexus is located in Article 2, U.C.M.J., which explains that the following people are subject to the code, which means they are proper targets (at least by virtue of who they are, not analyzing what the alleged offense is, which is known as subject matter jurisdiction) for military prosecution:
(a) The following persons are subject to this chapter:
(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it.
(2) Cadets, aviation cadets, and midshipmen.
(3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.
(4) Retired members of a regular component of the armed forces who are entitled to pay.
(5) Retired members of a reserve component who are receiving hospitalization from an armed force.
(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.
(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.
(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.
(9) Prisoners of war in custody of the armed forces.
(10) In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.
(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(13) Individuals belonging to one of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who violate the law of war.
(b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.
(c) Notwithstanding any other provision of law, a person serving with an armed force who—
(1) submitted voluntarily to military authority;
(2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;
(3) received military pay or allowances; and
(4) performed military duties;
is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.
(1) A member of a reserve component who is not on active duty and who is made the subject of proceedings under section 815 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntarily for the purpose of—
(A) a preliminary hearing under section 832 of this title (article 32);
(B) trial by court-martial; or
(C) nonjudicial punishment under section 815 of this title (article 15).
(2) A member of a reserve component may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was—
(A) on active duty; or
(B) on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.
(3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President.
(4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces.
(5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not—
(A) be sentenced to confinement; or
(B) be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (1)).
“It is black letter law that in personam jurisdiction over a military person is lost upon his discharge from the service, absent some saving circumstance or statutory authorization.” United States v. Howard, 20 M.J. 353, 354 (C.M.A. 1985). “Court-martial jurisdiction over active duty personnel ordinarily ends on delivery of a discharge certificate or its equivalent issued pursuant to competent orders.” Manual for Courts-Martial 202(a) Discussion (2).
A DD Form 214 is the equivalent of a discharge certificate. United States v. King, 27 M.J. 327, 329 (C.M.A. 1989). The DD Form 214 itself it not intended to have any effect on the termination of a member’s military status. United States v. Harmon, 63 M.J. 98, 102 (C.A.A.F. 2006). Instead, it is the “delivery” of the DD Form 214 that serves as notice that the member’s military status is terminated. “‘Delivery’ in this context has significant legal meaning. It shows that the transaction is complete, that full rights have been transferred, and that the consideration for the transfer has been fulfilled.” United States v. Howard, 20 M.J. 353, 354 (C.M.A. 1985)
While physical delivery of a discharge certificate is generally considered the event that ends a service member’s military status, “the discharge authority must have intended the discharge to take effect.” United States v. Green, 2008 U.S. Dist. LEXIS 65386 citing United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006). The receipt of a discharge certificate without the requisite intent to discharge a service member does not terminate court-martial jurisdiction. United States v. Green, 2008 U.S. Dist. LEXIS 65386 citing United States v. Guest, 46 M.J. 778, 780 (A. Ct. Crim. App. 1997).
FAILURE TO STATE AN OFFENSE
Another motion that is not waived even if not raised before the entry of pleas or the adjournment of the trial is that one or more of the offenses fails or failed to state an offense. There are several grounds on which an offense can fail to state an offense. One example would be if the prosecution failed to allege a required element. Another might be if the prosecution failed to properly assimilate state or federal law into a violation of Article 134. Another still would be if the prosecution did not allege the conduct as “wrongful” or other words that would connote wrongfulness.
The following is a redacted example of a motion I filed to dismiss a charge on behalf of a client who was facing, among other offenses, an allegation that he violated state law. The doctrine of assimilation permits the military to pull in other state laws or federal laws, under certain important circumstances, and if those circumstances are not specifically alleged in the specification, it is deficient and should be dismissed.
I. RELIEF SOUGHT
THE ACCUSED, by and through counsel, moves this Honorable Court to dismiss Specification 1 of Charge IV for failure to state an offense pursuant to R.C.M. 907(b)(1)(B). In the alternative, pursuant to R.C.M. 907(b)(3)(A), THE ACCUSED, by and through counsel, requests that this Honorable Court dismiss Specification 1 of Charge IV as so defective that it substantially misled THE ACCUSED. Accordingly, THE ACCUSED requests this Honorable Court deny the government’s request for judicial notice as irrelevant.
II. BURDEN OF PROOF/STANDARD OF PROOF
Pursuant to R.C.M. 907 (b)(1)(B), a specification shall be dismissed for failure to state an offense. In the alternative, pursuant to R.C.M. 907 (b)(3), a specification may be dismissed upon timely motion if it is so defective that it substantially misleads the accused. In accordance with R.C.M. 905 (c)(1) & (2) the burden of proof with respect to the Motion is by a preponderance of the evidence and the moving party bears the burden of persuasion.
1. On 1 June 2009, THE COMMANDER preferred, among others, Specification 1 of Charge IV.
2. On 25 June 2009, the Convening Authority referred all Charges and their specifications to a trial by Special Court-Martial empowered to adjudge a Bad-Conduct Discharge.
3. Specification 1 of Charge IV was not amended at referral and has not been amended to date.
Government Response to Inquiry (Enclosure 1)
Texas Penal Code Sections 46.01 and 46.02 (Enclosure 2)
R.C.M. 307 (c)(4)
M.R.E. 401, 402
Specification 1 of Charge IV Fails to State an Offense and Must be Dismissed.
Specification 1 of Charge IV reads: “In that THE ACCUSED, U.S. Army, did, at the Fort Hood Military Reservation, a place within the special maritime and territorial jurisdiction of the United States, on or about 27 May 2009, intentionally, knowingly or recklessly carry on or about his person an illegal knife, in violation of Title 18, United States Code, Sections 7(3) and 13, and Texas Penal Code, Section 46.02.”
It appears as though the government is attempting to allege a violation of a Texas Penal Code provision. However, in addition to certain language being absent, the government has failed to allege the requisite jurisdictional element and has failed to allege certain factual elements.
A. The Government Failed to Allege Assimilation
First, the government failed to use specific language regarding assimilation. Instead of alleging that THE ACCUSED violated Texas law as assimilated into federal law by 18 U.S.C. Section 13, the government alleges that THE ACCUSED violated 18 U.S.C. 13 and 18 U.S.C. 7(3). The government failed to allege that the state law was assimilated into Federal law and how it is assimilated into Federal law.
B. The Government Alleges THE ACCUSED Violated 18 U.S.C. 13 and 7(3)
Second, the government alleges that THE ACCUSED violated “18, United States Code, Sections 7(3) and 13…” in addition to a Texas Penal Code provision. Violation of 18 U.S.C. 13 and 18 U.S.C. 7(3) is not an offense. The Specification is further so defective as to mislead THE ACCUSED. As such, the military judge should dismiss the language regarding violation of 18 U.S.C. 13 and 18 U.S.C. 7(3) for failing to state an offense. Absent this language, the specification clearly fails to state a violation of Article 134.
C. The Government Omitted the Required Jurisdictional Element
Third, the government fails to allege the proper jurisdictional element. In order for the government to assimilate a state law provision under Article 134, UCMJ, they must allege that the place where the purported violation occurred was “a place under exclusive or concurrent federal jurisdiction.” Whether or not the place where the purported violation occurred is “a place within the special maritime and territorial jurisdiction of the United States” is of no moment. Furthermore, in order to charge a violation of state law under the Assimilative Crimes Act, the prohibited conduct must occur within areas of exclusive or concurrent Federal jurisdiction within the State. State violations become violations of Federal law pursuant to 18 U.S.C. Section 13, and are chargeable offenses presuming such violation has not been preempted by another specific UCMJ article. Accordingly, a specification alleging violations of State law, as assimilated into Federal law, at a location not under Federal exclusive or concurrent jurisdiction does not ordinarily state an offense.1* The government did not merely omit the requisite jurisdictional element; they charged an improper one that is irrelevant to charging an assimilated crime. The government appears to concede this deficiency in their Response to Inquiry dated 23 July 2009 (Enclosure 1).
If the government’s intent was to charge THE ACCUSED with a violation of Texas Penal Code Section 46.02, as assimilated into federal law by the Assimilative Crimes Act, they had to have charged it as follows:
In that THE ACCUSED, U.S. Army, did at Fort Hood, Texas, a place under exclusive or concurrent federal jurisdiction, on or about 27 May 2009, intentionally, knowingly or recklessly
1* Had the government also alleged that THE ACCUSED’s conduct violated Article 134 in that his conduct was to the prejudice of good order and discipline or service discrediting, then arguably a violation of Article 134 would persist; however, they did not aver a clause 1 or 2 violation so omitting the required jurisdictional element, means that the specification fails to state an offense.
D. The Government Failed to Allege Every Factual Element Necessary
Fourth, the government also failed to allege all factual elements of a violation of Texas Penal Code Section 46.02. Pursuant to R.C.M. 307(c)(3), a specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication. It is a violation of this provision to carry an illegal knife “if the person is not on the person’s own premises or premises under the person’s control; or inside of or directly en route to a motor vehicle that is owned by the person or under the person’s control” (Enclosure 2). At no place in the specification does the government allege factually that THE ACCUSED was either not on his own premises or at a premise not under his control at the time of his alleged violation. Also, at no point in the specification does the government allege factually that THE ACCUSED was not inside of or directly en route to a motor vehicle that is owned by THE ACCUSED or under THE ACCUSED’s control.
If THE ACCUSED’s criminal liability were based on only one of the above possible theories, then perhaps failing to omit this factual predicate would constitute alleging every element “by necessary implication”. Because, however, there are multiple possible factual predicates which could lead to his criminal liability, the government’s failure to state under which theory his alleged violation has occurred renders the omission if not fatal, then so defective as to be misleading to THE ACCUSED.
Defense avers that the specification would have to read as follows in order to fulfill all jurisdictional and factual elements:
In that THE ACCUSED, U.S. Army, did at Fort Hood, Texas, a place under exclusive or concurrent federal jurisdiction, on or about 27 May 2009, intentionally, knowingly or recklessly carry on or about his person an illegal knife, at a time when he was not on his own premises or at a time when he was not on a premises under his control, or at a time when he was not inside of or directly en route to a motor vehicle that he owned or at a time when he was not inside of or directly en route to a motor vehicle that was under his control, in violation of Texas Penal Code Section 46.02, assimilated into Federal law by 18 U.S. Code Section 13.
E. Defense Objects to Any Amendment to Specification 1 of Charge IV
Since Specification 1 of Charge IV is fatally defective, the defense objects to any motion to amend it. To allow the government to transform a charge that does not state an offense to one that does, is clearly not a minor amendment under R.C.M. 906(b)(4) and R.C.M. 603(a). Also, since any amendment to Specification 1 of Charge IV would add an offense or a substantial matter not fairly included in that previously preferred, there would be a charge not properly sworn to and not properly brought before this court-martial and certainly not properly referred to this court-martial. R.C.M. 307(b) and R.C.M. 601(d)(1). Accordingly, the appropriate remedy in this case is to dismiss Specification 1 of Charge IV.
FAILURE TO STATE WORDS OF CRIMINALITY
In charging alleged misconduct, it is vital that the prosecution allege specifically that the actions were wrongful. This becomes especially crucial when charging any form of assault consummated by a battery pursuant to Article 128, U.C.M.J. because not every touching is unlawful; a touching can be excused if it was done with lawful justification, as with a police officer acting pursuant to lawful duties or a parent disciplining a child for a valid purpose. Another example when alleging words of criminality is important and sometimes overlooked occurs in the realm of assimilation. An example of a redacted motion that I filed on behalf of a client is the following:
The Defense hereby moves to dismiss the entirety of Specification of Charge III and Charge III for failure to state an offense pursuant to R.C.M. 907(b)(1)(B) because the “assimilated” portion of the Specification (1) does not contain all of the elements of the offense, and accordingly does not protect THE ACCUSED against double jeopardy; and (2) the remaining general disorder portion of the Specification does not aver sufficient words of criminality. In the alternative, the Defense moves this Honorable Court to dismiss the Specification of Charge III and Charge III as so defective as to have misled THE ACCUSED. The Defense requests oral argument.
BURDEN OF PERSUASION AND BURDEN OF PROOF
Pursuant to R.C.M. 907 (b)(1)(B), a specification shall be dismissed for failure to state an offense. In the alternative, pursuant to R.C.M. 907 (b)(3), a specification may be dismissed upon timely motion if it is so defective that it substantially misleads the accused. In accordance with R.C.M. 905 (c)(1) & (2) the burden of proof with respect to the Motion is by a preponderance of the evidence and the moving party bears the burden of persuasion.
1. In the Specification of Charge III and Charge III, THE ACCUSED is accused of providing alcohol to a person under 21 years of age in violation of Section 311.310.1 of the Missouri state code and that his conduct was service discrediting.
2. This charge was preferred on 19 November 2014 and referred to trial without amendment on 31 March 2015.
The Defense relies on the Referred Charge Sheet and the Missouri Statute as evidence for this motion.
LEGAL AUTHORITY AND ARGUMENT
I. A non-defective Specification must fully allege every element of every offense.
“A Specification is a plain, concise, and definite statement of the essential facts constituting the offense charged. A specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication.” RCM 307. The specification must sufficiently “enable the accused to prepare a defense and to protect the accused against double jeopardy.” RCM 307, discussion (G)(iii); see also United States v. Norwood, 71 M.J. at 206.
When reviewing a specification the court is limited to the language as it appears in the specification to determine if it is adequate. See United States v. King, 71 M.J. 50, 51, fn2 citing United States v. Fosler, 70 M.J. 229 (focusing only on the charging language). If the defense raises an objection to the specification at trial, a superior court will review the language of the charges and specifications narrowly. Fosler, 70 M.J. at 232.
A Bill of Particulars is an inappropriate remedy because a Bill of Particulars cannot cure a defective specification. Id. At 231 (fn 4 citing Russell v. United States, 369 U.S. 749 (1962).
II. The Specification of Charge III does not allege an assimilated offense.
The Specification of Charge III does not state an offense because it fails to allege the elements with enough specificity to place THE ACCUSED on notice of the offense, and defend against future prosecution. The Specification alleges that THE ACCUSED supplied alcohol to THE COMPLAINING WITNESS, who was under 21 years of age at the time. The Specification lists as the situs of the offense, “at or near Kansas City, Missouri.” The Specification does not allege that the location of the offense was within the exclusive or concurrent federal jurisdiction of the United States.
The Specification, by its language, seems to indicate an attempt by the Government to employ the Assimilative Crimes Act (ACA), 18 USC 13, to assimilate Section 311.310.1 of the Missouri state code. That offense prohibits, among other things, providing alcohol to a person under 21 years of age.
The ACA states the following: “Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.”
By its plain terms, the ACA prohibits on various kinds of Federal properties and lands those acts or omissions, which would be prohibited in the state or territory in which the Federal property or land sits. The situs of the offense being on such property and subject to the exclusive or concurrent jurisdiction of the United States is thus an element of any offense, which seeks to assimilate a state law via the ACA. The A.C.C.A. held in an unpublished opinion that a specification is defective in the context of assimilating other Federal crimes into Article 134 when the specification failed to allege jurisdiction, i.e., that the offense occurred in a place of exclusive or concurrent federal jurisdiction. United States v. Pierce, ARMY 20080009. In the instant case, the Specification of Charge III and Charge III is defective because it fails to allege the requisite jurisdictional hook, that the situs occurred in a place of exclusive or concurrent jurisdiction.
For illustrative expample, the Military Judge’s Benchbook, DA Pam 27-9, provides a model specification for an assimilated offense: “In that __________ (personal jurisdiction data) did at __________, a place under exclusive or concurrent federal jurisdiction, on or about __________, (allege all elements of state offense), in violation of (Article 27, Section 35A, of the Code of Maryland) (__________) assimilated into Federal law by 18 U.S. Code Section 13.” DA Pamphlet 27-9, page 781 (emphasis added).
The Specification of Charge III and Charge III does not allege that the location of the offense occurred in a place under exclusive or concurrent federal jurisdiction. As a result, the Specification fails to properly allege jurisdiction and accordingly the Specification fails to state an offense under the ACA and Article 134 as a Clause 3 offense. See discussion infra regarding the Specification of Charge III and Charge III’s failure to state an offense under Clause 1 or Clause 2.
If the Specification of Charge III and Charge III are permitted to stand, then THE ACCUSED is also left open to future prosecution because of the vague nature of the charge. While THE ACCUSED could potentially use the entire record of this case to file a motion dismiss on jeopardy grounds in a future case. However if the Government only has to prove the Specification as it stands, it is possible that a more specific Specification in the future could also stand.
A motion for a bill of particulars does not remedy the defects in the Specification of Charge III and Charge III because the Government in an effort to remedy its otherwise defective pleading would have to add significant facts which would alter the elements currently alleged. Such additions would create an offense where none existed before, and this is not permitted. Likewise amending the Specification using another theory of prosecution could amount to a major change and is not permitted over defense objection; the Defense would object to any effort by the Government to amend the Specification of Charge III and Charge III.
III. The Specification of Charge III and Charge III fails to state a valid clause 2 violation.
“The fact that certain conduct is prejudicial to good order and discipline does not, in itself, make the conduct criminal and punishable under Article 134. For example, dating a crewmate’s recently estranged spouse could be prejudicial to good order and discipline, but is not necessarily criminal.” United States v. Hughley, 72 M.J. 809, 813 (C.G.Ct.Crim.App. 2013). What is necessary to plead sufficient words of criminality is a pleading that indicates that the conduct is itself wrongful, even if not necessarily requiring the specific pleading of “wrongful.” As the Hughley opinion explained:
Basic to alleging and proving a punishable offense is the existence and identification of a wrongful act or acts that meet the requirements of either or both of the clauses [of Article 134]. United States v. Hester, 68 M.J. 618, 620 (C.G.Ct.Crim.App. 2010) (quoting United States v. Henderson, 32 M.J. 941, 947 (N.M.C.M.R. 1991)). A specification under Article 134 must include words of criminality to be legally sufficient. Rule for Courts-Martial (R.C.M.) 307(c)(3) Discussion (G)(ii), Manual for Courts-Martial, United States (2008 ed.); United States v. Vaughan, 58 M.J. 29, 35 (C.A.A.F. 2003); United States v. Brice, 17 USCMA 336, 38 C.M.R. 134, 138-39 (1967) (citing United States v. Julius, 8 USCMA 523, 25 C.M.R. 27 (1957)); see also United States v. Daly, 69 M.J. 549, 552 (C.G.Ct.Crim.App. 2010) (“It is certainly true that a word of criminality such as ‘wrongfully’ is essential to an adequate specification.”), rev’d on other grounds, 69 M.J. 485 (C.A.A.F. 2011); Hester, 68 M.J. at 621 n.4.
The Hughley opinion expressly rejects the Government argument that the terminal element is itself enough to connote words of criminality. 72 M.J. at 814-15. In reliance on the C.M.A.’s Davis opinion, the Government offered that the absence of words of criminality to a Clause 1 or Clause 2 specification would not render it defective. 26 M.J. 445 (C.M.A. 1988). First, the Hughley opinion correctly posits that the Davis opinion offers a more narrow holding than the Government wishes and that the specification at issue in Davis survived because of the additional facts and circumstances specifically pleaded in addition to the terminal element. Hughley at 814-15. Furthermore, the Hughley opinion points out that the validity of Davis in any general context is called into question by the more recent Fosler opinion. Id. at 815 citing United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), and United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012).
Even though the opinion predates the Fosler opinion, the C.A.A.F. reasoned in its 2003 Saunders opinion that no magic words of wrongfulness are required to provide adequate notice for words of criminality. 59 M.J. 1, 9. In the challenged specification, the pleading alleged that the appellant “knowingly and willfully harass Ms. [H], by following her without consent, waiting for her at home, showing up at her home uninvited at all hours of the day and night, attempting to gain access to her home, breaking into her home, calling her at work from her home phone, wrongfully calling her incessantly on the phone at all hours of the day at both home and work, wrongfully refusing to leave her house when asked, locking himself in rooms of her home, repeatedly threatening to kill himself, wrongfully visiting her place of employment, wrongfully calling, visiting and attempting to gain access to her parent’s home in Lichtenfels, Germany, and willfully damaging her car, thereby causing the said Ms. [H] substantial emotional distress and reasonable fear of bodily injury, such conduct being of a nature to bring discredit upon the armed forces.” Id. at 5.
After excising the defective assimilation language, the remaining language alleges that THE ACCUSED, U.S. Army, did at or near Kansas City, Kansas provide intoxicating liquor to THE COMPLAINING WITNESS, such conduct being of a nature to bring discredit upon the armed forces. None of the pleaded language connotes any level of knowing or wrongful action on the part of THE ACCUSED, and no such pleading should be construed under the fair notice pleading doctrines reinforced under United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).
Because the Specification of Charge III fails to state an offense, this Court should dismiss it in its entirety.
(f) Reconsideration. On request of any party or sua sponte , the military judge may, prior to authentication of the record of trial, reconsider any ruling, other than one amounting to a finding of not guilty.
A procedural motion is one that raises an issue with the manner that the case was brought forward. Procedural motions can raise issues with defects in the charging process known as preferral, whether to raise that the person subject to the code as accuser (the commander, not the complaining witness) did not swear the oath or more commonly if the procedural safeguards of the preliminary hearing were not complied with at least to the standard of “substantial compliance.” In most if not all circumstances, procedural motions will not result in the case going away forever and always; typically, procedural motions are meant to cure errors to ensure process. The inevitable result in the granting of a procedural motion is delay, which will send the government back a few procedural steps or in some cases, can result in dismissal without prejudice. Dismissal without prejudice means that the charges are only temporarily dismissed and the government has the option to bring the charges anew. For tactical reasons, defense counsel may choose not to raise procedural motions. In some cases, because there is a good working relationship between counsel and the client, the counsel becomes aware of additional misconduct that the client has committed but that the government does not yet know about. In such circumstances, raising a procedural error may not be in the client’s best interest because in doing so, it runs the risk that the government learns of the additional misconduct and has opportunity to bring additional allegations against the client.
In certain situations, delaying a matter is in the best interest of the client, whether because with time, the witnesses against the client lose interest or because time means more paychecks for the client. When the attorney assesses that raising the procedural motion is appropriate for filing, what is crucial is for the lawyer’s prayer for relief (what the attorney is asking for the judge to do or not to do) to be available and to be clear. In fact, what the attorney seeks should be a pivotal part of the assessment as to whether or not the motion should be filed at all. Additionally, as in any motion (evidentiary or procedural), the author must cite to authority that allows the military judge to take the remedial action being requested.
Examples of procedural motions an attorney can file in a military court-martial case are objections based on defects (other than jurisdictional defects) in the preferral, forwarding, investigation, or referral of charges. R.C.M. 905(b)(1). What are defects in preferral, forwarding, investigation, or referral of charges? As the discussion to the rule provides, “[s]uch nonjurisdictional defects include unsworn charges, inadequate Article 32 [preliminary hearings], and inadequate pretrial advice. See R.C.M. 307; 401–407; 601–604.”
Motions for defective preferral of charges pertain most often to improper influences on the charging authority swearing to the charges, also known as unlawful command influence. Please note that a motion regarding unlawful command influence is the only procedural motion that potentially provides relief of dismissal with prejudice.
A sample motion to dismiss for unlawful command influence is as follows:
UNITED STATES ARMY, _______ JUDICIAL DISTRICT, UNITED STATES of AMERICA, MOTION FOR APPROPRIATE RELIEF – DISMISS – UNLAWFUL COMMAND INFLUENCE
COMES NOW XXXXXXXXX, the accused in the above-referenced case now pending, through counsel, and moves this Honorable Court to dismiss all charges and specifications against the accused based upon unlawful command influence in violation of Article 37 of the Uniform Code of Military Justice (10 U.S.C. §837) and illegal pretrial punishment in violation of Article 13, UCMJ.
The defense specifically avers that unlawful command influence occurred in two separate ways: 1) interference with and tampering of witnesses, specifically that the forward-detachment’s First Sergeant, YYYYYYYYY, tainted the pool of defense witnesses and intimidated potential witnesses in coming forward to speak on behalf of XXXXXXXXXXX; and 2) the forward detachment chain-of-command improperly encroached upon the individual discretion of the rear-detachment, company commander, XXXXXXXXXXX in the disposition of this case.
In the event that this Honorable Court does not dismiss all charges and their specifications, the defense respectfully requests that certain remedial measures be taken to attempt to ensure the findings and sentence are not affected if the charges and specifications are not dismissed. These requested measures are discussed infra.
BURDEN OF PROOF
The Defense, as the moving party, bears the burden of this motion by a preponderance of the evidence pursuant to RCM 905(c)(1) for a motion under Article 13, UCMJ.
The standard for unlawful command influence is as follows: at trial, the accused must show facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings. U.S. v. Biagase, 50 M.J. 143, 150 (CAAF 1999). The evidentiary standard for raising the issue is the same as required to raise an issue of fact, i.e., some evidence. U.S. v. Biagase, 50 M.J. 143, 150 (CAAF 1999).
Once the issue is raised at the trial level, the burden shifts to the government, which may either show that there was no unlawful command influence or show that the unlawful command influence will not affect the proceedings. U.S. v. Biagase, 50 M.J. 143, 150 (CAAF 1999). The test for a judge is that it must be persuaded beyond a reasonable doubt that the findings and sentence have not been affected by the command influence. U.S. v. Biagase, 50 M.J. 143, 150 (CAAF 1999). There is a rebuttable presumption of prejudice once the issue is raised. U.S. v. Biagase, 50 M.J. 143, 150-151 (CAAF 1999).
The government may carry its burden by (1) disapproving the predicate facts on which the allegation of unlawful command influence is based; (2) by persuading the military judge that the facts do not constitute unlawful command influence; or (3) by producing evidence proving that the unlawful command influence will not affect the proceedings. U.S. v. Biagase, 50 M.J. 143, 151 (CAAF 1999). With respect to persuading the military judge that the facts do not constitute unlawful command influence, the government must persuade the military judge beyond a reasonable doubt that there was no unlawful command influence or that the unlawful command influence did not affect the findings and sentence. U.S. v. Biagase, 50 M.J. 143, 151 (CAAF 1999).
III. WITNESSES/ EVIDENCE
The Defense requests the following witnesses be produced:
The defense relies on the following authorities in support of its motion:
- Article 37, UCMJ
- United States v. Biagase, 50 M.J. 143 (1999)
- United States v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994), denied, 513 U.S. 1156, 130 L. Ed. 2d 1077, 115 S. Ct. 1113, (1995).
- United States v. Wallace, 39 M.J. 284 (CMA 1994)
- United States v. Johnston, 39 M.J. 242, 244 (CMA 1994)
- United States v. Allen, 33 M.J. 209 (CMA 1991)
- United States v. Stoneman, 54 M.J. 664 (Army Ct. Crim. App. 2000)
- United States v. Plumb, 47 M.J. 771 (A.F.C.C.A. 1997)
- United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997).
Unlawful command influence has been referred to as the “mortal enemy of military justice.” U.S. v. Thomas, 22 M.J. 388 (C.M.A. 1986). Therefore, Article 37 and the relevant case law specifically prohibit it. Although most cases of unlawful command influence involve commanders, the proscriptions against unlawful command influence extend to all persons subject to the Code. See U.S. v. Hilow, 32 M.J. 439. Command influence can be actual or apparent. U.S. v. Allen, 31 M.J. 572, 589 (N.M.C.M.R. 1990). The test for apparent unlawful command influence is whether a reasonable member of the public, if aware of all the facts, would have a loss of confidence in the military justice system and believe it to be unfair. Id. at 590 (citing U.S. v. Rosser, 6 M.J. 267 (C.M.A. 1979); U.S. v. Cruz, 20 M.J. 873, 890 (A.C.M.R. 1985)). As stated in Allen:
In a system of justice operating within a well-defined and fairly cohesive community, the mere threat of command influence may be as debilitating to the system as its actual presence. If respect for the justice system is a key factor in military morale and discipline, the fact that the system appears vulnerable to command pressures may be as damaging as the occasional exercise of such pressures. Individuals react to phenomena, after all, on the basis of their perceptions of those phenomena. Id.
Article 37, UCMJ, provides that “no person subject to [the UCMJ] may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case.” Id.
The Court of Appeals of the Armed Forces in United States v. Biagase, 50 M.J. 143 (1999), addressed the issue of unlawful command influence, and laid out the standard for raising unlawful command influence. The Defense has the initial burden to raise unlawful command influence, by showing “facts, which if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings.” Id. at 150, citing, United States v. Allen, 33 M.J. 209, 212 (CMA 1991). The court stated that “the threshold for raising the issue at trial is low, but more than mere allegation or speculation.” Id. at 150, citing United States v. Johnston, 39 M.J. 242, 244 (CMA 1994).
Once the issue of command influence is sufficiently raised by the Defense, “the appearance or existence of unlawful command influence creates a rebuttabal presumption of prejudice.” See United States v. Stoneman, 54 M.J. 664, 670, (Army Ct. Crim. App. 2000), citing United States v. Wallace, 39 M.J. 284, 286 (CMA 1994). The burden then shifts to the Government to prove, beyond a reasonable doubt, that there was no unlawful command influence or that the unlawful command influence will not affect the proceedings. See Biagase at 150. Unlawful command influence can apply to the actions of the members of the Office of the Staff Judge Advocate. See generally, United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997).
Either actual or apparent unlawful command influence are sufficient to justify dismissal of charges. In this case, the actual unlawful command influence may be presumed due to overwhelming pretrial publicity. If it is not, then the apparent unlawful command influence in this case still operates to irretrievably damage the perception of fairness by reasonable members of the public, and this too justifies dismissal of charges.
Influencing of Witnesses
- XXXXXXXXXXX deployed to Iraq in November 2006 with the ___________ Company.
- In July 2007, XXXXXXXXXXX redeployed to ___________ after being granted emergency leave.
- On 4 August 2007, SPC TTTTTTTT, who replaced XXXXXXXXXXX after XXXXXXXXXXX’s redeployment, was killed on mission by an IED.
- On or about 5 September 2007, the __________ Company First Sergeant, YYYYYYY redeployed to Hanau, Germany to accompany another Soldier.
- On or about 7 September 2007, the ______ Company forward-detachment, YYYYYYYYY, in the presence of XXXXXXXXXXX, OOOOO and SSSSS encountered XXXXXXXXXXX in the company area and shouted the following at him, “You are a piece of shit. It should have been you who died and not [Death Victim].”
- YYYYYYYYY shouted these words to XXXXXXXXXXX in front of other members of the ______ rear-detachment, including XXXXXXXXXXX, MMMMMMM and PPPPPPPP. Other ______ Company’s rear-detachment Soldiers and at least one Soldier from the forward-detachment, SPC Stephanie Anderson, heard about YYYYYYYYY’s angry comments.
- At no time did the rear-detachment chain of command correct YYYYYYYYY or discourage him from making his remarks.
- Additionally, during pre-trial investigation, the Defense was having considerable difficulties contacting forward-detachment witnesses. After making the Court aware of this fact, on 8 November 2007 the Military Judge had to order the Trial Counsel to work through the forward command and impress upon them the need to aid the Defense with contacting witnesses.
- After the Trial Counsel got involved, the Defense had success in interviewing witnesses telephonically. During these interviews, numerous witnesses relayed that the 127th forward-detachment First Sergeant, YYYYYYYYY, had told a “gaggle” of 1st Platoon Soldiers, including SPC JJJJJJJJ and SPC (now SGT) LLLLLLLLL, that XXXXXXXXXXX has “beaten his wife into the hospital” and that he was currently in jail. These comments, as YYYYYYYYY was aware, are patently untrue and were said to inflame negative feelings towards XXXXXXXXXXX and served to taint the pool of witnesses from which the Defense is drawing.
- The Defense subsequently learned that YYYYYYYYY addressed __________ forward-detachment’s 1st Platoon stating that XXXXXXXXXXX had left theater under “questionable circumstances” and had refused to return. He further stated that “they” [presumably the rear- and forward-detachment chains of command] intended to get the maximum possible punishment for his conduct. These statements again mischaracterized XXXXXXXXXXX’s actions and were made to XXXXXXXXXXX’s platoon, again the very pool of witnesses from which the Defense is exclusively drawing.
- Finally, the Defense has recently learned that during the __________ Company’s final formation before re-deploying to _________, YYYYYYYYY stated that because of the delay in the court-martial, any witnesses previously identified to testify in “the court-martial” would have their block leave delayed indefinitely or canceled altogether. SPC AAAAAA will testify that the insinuation was clearly that this delay was caused by the defense. Despite the Government’s witness list containing the names of the unit’s commander and first sergeant, Trial Counsel represented to the Military Judge in the R.C.M. 802 session on 28 November 2007 that he did not intend to bring back either witness for trial. Only the Defense plans to call Soldiers from the _________ Company’s forward-detachment.
Influencing of Witnesses
A unit first sergeant is an imposing figure of any company and his or her words and/or actions carry much weight and influence. When YYYYYYYYY apprised the members of his company about XXXXXXXXXXX’s status in an inaccurate and inflammatory manner, he potentially tainted the entire company against XXXXXXXXXXX. News of his rants travelled to the rear detachment as well. He specifically discouraged PVT HHHHHH, PFC GGGGGG, and SGT FFFFFFFF from offering evidence helpful to the defense. Each stated that they would be willing to testify on behalf of XXXXXXXXXXX only if the forward-detachment chain of command was not in the court room because they feared “retaliation.” PVT HHHHHH, PFC GGGGGG, and SGT FFFFFFFF each individually expressed that they saw testifying on behalf of XXXXXXXXXXX as going “against the command.” These statements represent clear and unequivocal evidence that YYYYYYYYY’s bias against XXXXXXXXXXX reverberated throughout the company, even the rear detachment. During telephonic interviews of potential forward witnesses, several _______ Soldiers expressed reluctance to even speak with the defense counsel. Repeated coordination with government counsel after Judge _________ ordered him to assist the defense was necessary to facilitate a minimal level of cooperation. YYYYYYYYY’s most recent actions potentially tainted the Soldiers who are now being called by the Defense in this case. Because of the forward-detachment’s block leave schedule, the Defense has been unable to evaluate whether his comments at their last formation effected and prejudiced the Defense’s witnesses.
When the Military Judge granted a delay in the trial from 3 and 4 December 2007 until 28 and 29 January 2008, YYYYYYYYY was in a position to continue to improperly influence the Soldiers of _________ Company. But for government counsel’s failure to coordinate with the forward battalion commander, the government would have been able to produce the defense witnesses and the trial would have taken place in December as scheduled.
Further, the words and actions by YYYYYYYYY irreversibly tainted potential Defense witnesses. Not only did YYYYYYYYY spread rumors that were patently untrue (that XXXXXXXXXXX had beaten his wife into the hospital) in an attempt to further inflame feelings against XXXXXXXXXXX, yelled at XXXXXXXXXXX, that he was “a piece of shit” in the presence of others, but also attempted to discourage witnesses form testifying by insinuating that their block leave would be pulled. The word of senior non-commissioned officers, particularly First Sergeants, carries great weight in the military. Through these comments, YYYYYYYYY made it clear to Soldiers in the Battalion that the command already considered XXXXXXXXXXX to be guilty, and that anyone who spoke up on his behalf would fall into disfavor with the command. These facts amount to more than mere allegation or speculation. This is the very essence of unlawful command influence.
The statements by YYYYYYYYY and the chain of command’s failure to intervene have stripped the Defense of the ability to put on a case in mitigation and may also have effected the ability to present a defense on the merits. Prior to being administratively separated from the Army, PV2 SSSSSSS stated, “I’m leaving Ma’am…that’s the only reason why I am talking to you” (in reference to his witnessing of YYYYYYYYY’s tirade against XXXXXXXXXXX). The Defense does not know how many other Soldiers may have felt that there would be repercussions for speaking on XXXXXXXXXXX’s behalf or how many witnesses will still be willing to speak freely to the Defense.
Improper Encroachment by Forward Command
- On 10 September 2007, three days after YYYYYYYYY’s aggressive encounter in the company area, charges were preferred against XXXXXXXXXXX. The rear-detachment commander, XXXXXXXXXXX, originally planned to separate XXXXXXXXXXX via an administrative discharge. He later changed his mind after the forward-detachment “lost the chapter paperwork.” He decided not to re-initiate the chapter paperwork after speaking with the forward detachment about the case.
- On 18 September 2007, the government referred the charges to a special court-martial authorized to adjudge a bad conduct discharge.
- In its initial discovery request dated 4 October 2007, the defense requested production of all e-mails between the rear-detachment and forward-detachment about this case. As of the time of its initial interview of XXXXXXXXXXX, no e-mails had been produced.
- On or about 16 October 2007, government counsel provided three incomplete e-mail chains which indicated discussion as to the disposition of XXXXXXXXXXX’s case between the forward and rear commands. In so doing, there is at minimum an appearance that the rear command inappropriately influenced the rear-detachment commander and encroached upon his individual discretion.
- In order to investigate and demonstrate this improper influence, the defense requested that the government disclose all such e-mail communications by filing two discovery requests, a Motion to Compel and by orally alerting the Trial Counsel that this request had not been fully complied with. The Defense has to date not received the complete e-mail chains mentioned above nor any additional e-mail communications or assurance that those produced are the complete compilation.
- On 5 November 2007, the Defense re-interviewed the rear-detachment company commander, XXXXXXXXXXX. During this interview, XXXXXXXXXXX indicated that he originally planned on separating XXXXXXXXXXX via an administrative discharge. When asked why this course of action was abandoned, XXXXXXXXXXX indicated that the 127th forward-detachment had “lost the paperwork,” or words to that effect and after speaking with the company’s forward-detachment leadership he felt that XXXXXXXXXXX should serve as an example for other Soldiers who may be inclined to disobey orders. Despite the timing of the change in his sentiment, XXXXXXXXXXX denied feeling pressured by the forward-detachment chain of command.
- On 7 November 2007, during a telephone conversation with trial counsel, the Defense reminded the Government that the discovery request for e-mails had not been fully complied with and requested the remaining e-mails be produced. The Trial Counsel indicated that he was unable to comply with the request because the computer server for the downrange command had been damaged or corrupted.
- However, on 13 November 2007, the Trial Counsel’s e-mail response to the Defense request for the e-mail was “The broad scope of the request means that compliance likely will require a significant amount of man hours for a forward deployed unit engaged in combat operations. The unit should not be required to divert already scarce resources from its combat operations to compile the requested information without a demonstration that all of it is relevant and necessary to the subject court-martial. To date, the Defense has failed to provide such a demonstration.” See attachment D.
- Communication with the rear detachment command confirmed that additional email traffic surrounding this case does exist.
Specifically, attempts to influence or interfere with potential witnesses are proscribed by Article 37 when undertaken by a “person subject to” the UCMJ. United States v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994), cert. denied, 513 U.S. 1156, 130 L. Ed. 2d 1077, 115 S. Ct. 1113, (1995).
The appearance of impropriety is considerable in this case on two levels; 1. It appears that XXXXXXXXXXX’s independent discretion in the disposition of this case was encroached upon and 2. the comments made by YYYYYYYYY were attempts to influence or interfere with potential witnesses which is specifically proscribed by Article 37.
As stated by the Allen court, “a convening authority must be impartial and independent in exercising his authority under the Code. The very perception that a person exercising this awesome power is dispensing justice in an unequal manner or is being influenced by unseen superiors is wrong.” Allen, 31 M.J. at 593. The court goes on to state that it is a fraud on the system for a superior to “send the word” down to the convening authority as to a desired result in a criminal case which will please the leadership of our armed forces. Id. The appellate courts have reversed cases where a higher authority apparently directed the actions of a subordinate with respect to the disposition of a case. U.S. v. Gerlich, 45 M.J. 309 (CAAF 1996). While the emails requested by the Defense in their numerous discovery motions and Motion to Compel could prove otherwise, there is certainly an appearance that XXXXXXXXXXX was pressured into disposing of this case at a special court-martial. The mere fact that XXXXXXXXXXX had originally decided to administratively discharge XXXXXXXXXXX out of the Army and then changed his mind because the forward-detachment “lost the paperwork,” is sufficient enough evidence to raise the issue of apparent unlawful command influence.
The e-mails produced thus far represent at minimum the appearance of unlawful command influence. The Defense has been precluded from fully investigating all of the possible evidence as the Government has not provided the requested discovery. These e-mails can provide further evidence that the forward-detachment encroached on the rear-detachment’s independent discretion in the disposition of this case.
The Defense respectfully requests this Honorable Court to dismiss all charges and specifications against the accused based upon unlawful command influence in violation of Article 37 of the Uniform Code of Military Justice (10 U.S.C. §837) and illegal pretrial punishment in violation of Article 13, UCMJ.
In the event that this Honorable Court does not dismiss all charges and their specifications, the defense respectfully requests that the following remedial measures be taken to attempt to ensure the findings and sentence are not affected if the charges and specifications are not dismissed.
- 1SG RRRRRRRRR be ordered to stand in front of every soldier in _________ Company, immediately with both the rear- and forward- Company Commanders, CPT ____________ and CPT _________, standing next to him, and apologize for his inappropriate comments and conduct, to explain what unlawful command influence is, and to tell all Soldiers that they should testify for the accused if they have information beneficial to the Defense or anything positive to say regarding the accused, and to tell the Soldiers to report to the TDS office at ____________ if they have anything positive to state regarding the accused. CPT ______ should be ordered to explain to the company that YYYYYYYYY’s conduct and comments to the company were improper and that it is important that every Soldier receive a fair trial and have witnesses testify on their behalf so the court can see the whole Soldier. The defense requests these comments be videotaped at each presentation for the defense and court to review to ensure the Court’s order is carried out properly.
- To order all of the chain of command both forward- and rear-detachments, from _________ Company, whether in __________ or ____________, to immediately report to TDS, in Building 4a, for interviews, to determine whether the taint of the first sergeant’s comments have affected or will affect the proceedings or whether undue pressure was placed on XXXXXXXXXXX to dispose of this case through a Special Court-martial authorized to adjudge a Bad Conduct Discharge.
- To compel the discovery of all e-mails between ___________ Company’s forward- and rear-detachment chains of command regarding the disposition of XXXXXXXXXXX’s case or the progress of this court-martial.
- To order the OSJA to turn YYYYYYYYY’s actions and conduct regarding this issue over to the Inspector General office for a full and complete investigation.
- To order all Soldiers assigned to _______ Company’s, 1st Platoon to report to TDS, in Building 4a, as soon as they return from block leave, for interviews to determine whether the taint of the First Sergeant’s comments have affected or will affect the proceedings.
- To order two investigators be immediately assigned to the defense team to interview witnesses from ____________ Company, to help determine whether the taint of the unlawful command influence will affect the proceedings.
If these initial remedies cannot remedy the taint of the unlawful command influence for trial to ensure the finding and sentence are not tainted, the defense will ask that all charges and specifications be dismissed.
If the court finds that the findings and sentence will not be affected and declines to dismiss all charges and specifications, the defense will request that if the accused is found guilty, that no confinement be approved; the government be prohibited from calling any witnesses or introducing any evidence for sentencing; the court should order the government to produce relevant witnesses requested by the defense no matter where they are located; allow XXXXXXXXXXX to testify about what he thinks people would say about him if called; and prohibit the government from cross-examining XXXXXXXXXXX during sentencing, if he chooses to testify, or present any rebuttal evidence.
Most of these remedies have been employed by courts in the past to remedy any potential unlawful command influence. See U.S. v. Biagase, 50 M.J. 143, 148 (CAAF 1999); U.S. v. Francis, 54 M.J. 636, 640 (ACCA 2000); U.S. v. Rivers, 49 M.J. 434, 439 (CAAF 1998).
For the reasons stated above the Defense respectfully requests the Court dismiss all charges in the above-pending court-martial or in the alternative, employ the above requested remedial measures.
I certify that a copy was served on the Trial Counsel via e-mail on 27 February 2008.
Defense reserves the right to submit additional case law and argument at trial.
DEFECT IN SWEARING TO THE CHARGE(S)
Another defect in the preferral of charges to be raised in a motion is that the charging authority was not sworn to the charges. A defect in whether or not the charges were sworn to is not apparent on the face of the charge sheet. In order to find out if there is a defect in the swearing of charges, defense attorneys must interview the commander that signed that they swore to find out if the proper procedure was followed.