United States v. Wright

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class BRANDON T. WRIGHT
United States Air Force

Misc. Dkt. No. 2014-10

13 January 2015

____ M.J. ____

GCM convened at Joint Base Andrews Naval Air Facility Washington,
Maryland. Military Judge: Joshua E. Kastenberg.

Appellate Counsel for the Appellee: Captain Thomas A. Smith (argued)
and Colonel Patrick J. Wells.

Appellate Counsel for the United States: Captain Thomas J. Alford
(argued); Lieutenant Colonel Katherine E. Oler; Major Mark F. Rosenow;
and Gerald R. Bruce, Esquire.

En Banc

HECKER, MITCHELL, SANTORO, WEBER, TELLER, KIEFER, and BENNETT 1
Appellate Military Judges

PUBLISHED OPINION OF THE COURT

HECKER, Senior Judge and WEBER, Judge:

The Government filed an interlocutory appeal under Article 62, UCMJ, 10 U.S.C.
§ 862, in this matter. The military judge abated the proceedings after the Government
refused to comply with his order to disclose materials the Government asserted were
privileged. The Government appealed this abatement order. We conclude that the
military judge’s ruling was incomplete and ambiguous in that he should have taken
further steps to define what materials were appropriate for in camera review. We

1
Chief Judge Allred and Judge Contoveros recused themselves from participation in this matter due to their
involvement in this case before their assignments to this court. See Air Force Standards for Criminal Justice,
Standard 6-1.9; Air Force Instruction (AFI) 51-201, Administration of Military Justice, Attach. 3 (25 September
2014).
1 Misc. Dkt. No. 2014-10
therefore grant the Government’s appeal solely on this basis and remand for clarification
and action in accordance with the decision below.

Procedural Background 2

The appellee’s case made its way to this court by way of an unusual journey. The
appellee originally had his case dismissed by a general court-martial convening authority
(GCMCA) following an Article 32, UCMJ, 10 U.S.C. § 832, investigation. Shortly after
dismissal, the acting Secretary of the Air Force transferred the appellee’s case to a
different convening authority who ultimately referred the case to a general court-martial.

The appellee was originally charged on 14 May 2013 with one specification of
rape, one specification of aggravated sexual contact, one specification of abusive sexual
contact, and one specification of sexual assault, all in violation of Article 120, UCMJ,
10 U.S.C. § 920, and one charge and one specification of disorderly conduct, in violation
of Article 134, UCMJ, 10 U.S.C. § 934. The charges and specifications related to his
sexual encounter with a noncommissioned officer from his duty section following a
shopping trip and an evening of watching movies and drinking. The GCMCA for these
charges was then-Lieutenant General (Lt Gen) Craig Franklin, the commander of Third
Air Force.

There were two Article 32, UCMJ, investigations in the appellee’s case.
Following the first Article 32, UCMJ, investigation in June 2013, which included
testimony from the named victim, the Article 32 investigating officer recommended the
charges not be referred to trial, citing his view that the named victim lacked credibility,
his belief that there were inconsistencies in her various accounts of the events, and his
view that the case contained evidentiary deficiencies (including the fact that a friend of
the appellee who was present during the encounter stated the sexual acts appeared
consensual). Although two staff judge advocates 3 for the special court-martial convening
authority (SPCMCA) agreed with the investigating officer, the SPCMCA recommended
referral. The staff judge advocate for the GCMCA concurred with the investigating
officer’s evidentiary assessment and recommended none of the charges be referred.

The named victim indicated some desire to speak with the GCMCA prior to
disposition of charges, but that did not occur. Her special victims’ counsel (SVC),
however, provided the GCMCA with a 12-page memorandum expressing the named
victim’s desire that the case be brought to trial, among other matters. After considering

2
This background section and the subsequent discovery litigation background section are provided for context
leading up to the military judge’s ruling at issue. We make no specific findings of fact in this section to support our
holding as we lack fact-finding authority in this interlocutory appeal. The matters in this section are drawn from
unambiguous factual matters with which the parties do not appear to disagree as well the military judge’s findings of
fact that are fairly supported by the record.
3
Due to an assignment change, two individuals served as staff judge advocate for the Special Court-Martial
Convening Authority (SPCMCA) during the relevant time period.
2 Misc. Dkt. No. 2014-10
the SVC’s memorandum, the GCMCA dismissed all charges and specifications on
3 September 2013.

Shortly after that action, The Judge Advocate General of the Air Force (TJAG),
Lt Gen Richard Harding, spoke telephonically with the GCMCA’s staff judge advocate,
Colonel (Col) Joseph Bialke. 4 According to Col Bialke, Lt Gen Harding stated the
following: the failure to refer the case to trial would place the Air Force in a difficult
position with Congress; absent a “smoking gun,” victims are to be believed and their
cases referred to trial; and dismissing the charges without meeting with the named victim
violated an Air Force regulation. 5

On 6 September 2013, around the same time as Lt Gen Harding’s conversation
with Col Bialke, the acting Secretary of the Air Force, acting on Lt Gen Harding’s
advice, attached the appellee to the Air Force District of Washington (AFDW) at
Joint Base Andrews, Maryland, “for disposition of matters related to [this] alleged sexual
assault.” The memo effecting the transfer stated as follows: “Disposition of this case,
whether by no action, administrative action, nonjudicial punishment, court-martial or
otherwise, is entirely within the discretion of the commander or convening authority as
appropriate, under applicable directives. No inference whatsoever should be drawn from
the attachment of Airman Wright to AFDW.” Major General (Maj Gen) Sharon Dunbar,
served as the AFDW commander and the GCMCA over this case after the transfer. The
appellee remained stationed in Italy. By the time of the case’s transfer, the named victim
had been physically reassigned to the National Capital Region upon her request due to the
allegations in this case.

After the transfer of this case, the servicing legal office at Joint Base Andrews
reviewed the evidence and drafted one charge and two specifications alleging rape by
unlawful force, which were preferred on 7 November 2013 by the Force Support
Squadron commander at the 11th Wing, Joint Base Andrews. No new facts were
discovered about the underlying allegations in this case between the initial dismissal and
the institution of these new charges. A military judge was appointed as the investigating
officer and a second Article 32, UCMJ, investigation was conducted on 14 January 2014
in which the named victim testified along with other witnesses.

4
Lieutenant General Harding and Colonel Bialke both retired before the Government brought this appeal.
5
Currently, when a General Court-Martial Convening Authority (GCMCA) decides not to refer certain types of
sexual assault charges to trial after the GCMCA’s staff judge advocate has recommended that these charges not be
referred to a court-martial, the case file is to be forwarded to the next superior GCMCA for review. The case file
must include “a certification that the victim [had been] notified of the opportunity to express [her] preference as to
disposition of the alleged offense for consideration by the convening authority.” Air Force Guidance Memorandum
to AFI 51-201, ¶¶ 4.14, 4.21, 4.22.3. The template for the certification is a memorandum to the victim that contains
the following language: “If you [or your Special Victims’ Counsel] would like to speak with (Rank and Name of
SPCMCA) directly by telephone, VTC, or in person, please contact (rank and name of [Victim-Witness Advocacy
Program point of contact] or Trial Counsel) at (phone number)(email address) to arrange a meeting.” Id. at Figure
4.15.
3 Misc. Dkt. No. 2014-10
 Like the first investigating officer, the second investigating officer found the
evidence did not establish reasonable grounds to believe the appellee committed the
offense of rape (due to the lack of “unlawful force”). Unlike the prior investigating
officer, he recommended the lesser-included offenses of sexual assault (by bodily harm)
be referred to a general court-martial. Both the SPCMCA and his staff judge advocate
recommended referring the charges as preferred, while the staff judge advocate for the
GCMCA agreed with the investigating officer’s conclusions and recommended referring
the lesser-included offenses to trial. On 6 March 2014, contrary to her staff judge
advocate’s advice, the GCMCA referred the preferred rape specifications to a general
court-martial. However, following a successful defense motion for dismissal due to
improper referral, the Government proceeded to trial on the lesser-included
specifications. 6

Background on Discovery Litigation

On 12 March 2014, the appellee’s trial defense counsel asked the Government to
produce “any and all correspondence” 7 about the appellee’s case, Lt Gen Franklin’s
retirement, and “the handling of sexual assault generally” from numerous individuals and
offices. These included: relevant legal offices, convening authorities, and commanders;
TJAG; and the offices of several senior military leaders up to the office of the Secretary
of Defense. Trial defense counsel’s request described certain investigatory steps he had
taken prior to concluding he had:

good faith to believe that written and/or electronic
correspondence exists that could shed light on the unusual
procedural aspects of this case, the impact of high-level and
political pressure on the decision to transfer and refer this
case, and the impact (or perceived impact) of
Lt Gen Franklin’s decision to dismiss the charges on his
career. Such information would all be relevant to exploring
the extent of any actual or perceived [unlawful command
influence]. Furthermore, because the Defense believes such
decisions may have been based, in part, on internal and
external pressures related to the handling of sexual assault
cases, it is vital to the Defense’s understanding of these issues
to obtain communications related to the handling of sex

6
The improper referral motion was based on Article 34, UCMJ, which states a convening authority “may not refer a
specification . . . to a general court-martial for trial unless he has been advised in writing by the staff judge advocate
that . . . the specification is warranted by the evidence indicated in the [Article 32, UCMJ] report of investigation.”
10 U.S.C. § 834 (2012). The Government agreed the military judge should grant the defense motion as to the rape
specifications but argued the lesser-included offenses of sexual assault should be permitted to proceed to trial. The
defense then agreed to drop its motion if the case went forward as two specifications of sexual assault by bodily
harm.
7
This request “includes, but is not limited to emails, faxes, summaries of conversations, memos for record, and
memoranda.”
4 Misc. Dkt. No. 2014-10
 assault cases generally in addition to those communications
specifically addressing [the appellee’s] case.

On 24 March 2014, the Government agreed to produce correspondence relating to
the appellee’s case for certain offices involved in the second iteration of his case: the
AFDW GCMCA and her legal office, the 11th Wing SPCMCA and his legal office, and
the squadron commander who preferred the second set of charges. The defense had
requested comparable information from the offices of: (1) those involved in the first
iteration of his case in Italy, (2) senior military and civilian leaders, and (3) TJAG.
Additionally, the defense had sought correspondence involving: (1) sexual assault and
sexual assault prosecutions generally, (2) Lt Gen Franklin’s retirement, (3) public affairs
or the media, and (4) the AFDW’s Sexual Assault Prevention & Response (SAPR) office.
The Government denied these requests except to the extent they overlapped the requests
the Government had agreed to process.

On 25 March 2014, the defense filed a 45-page motion to dismiss for unlawful
command influence, defective preferral, and defective referral, with 390 pages of
attachments. For the unlawful command influence aspect of the motion, the defense
argued that a “toxic” atmosphere existed with regard to sexual assaults in the military
which, when coupled with pressure to increase prosecutions and convictions, created an
environment in which no military accused facing sexual assault charges would be treated
fairly. The defense contended “the level of toxicity and pressure” had reached an
unprecedented level in the appellee’s case where:

After a thorough Article 32 investigation, which to date has
yet to be found improper, four experienced JAGs reviewed
the evidence independently and recommended dismissal due
to lack of sufficient evidence. [Lt Gen] Franklin
subsequently agreed and dismissed the charges. For reasons
still unknown, the [Major Command], TJAG, [the Chief of
Staff of the Air Force], and [the Secretary of the Air Force]
responded by second-guessing the recommendation of
competent [staff judge advocates] and a decorated 3-star
general, ultimately transferring the case in an unprecedented
move to a new Convening Authority with a well-documented
role in Sexual Assault Prevention. 8 In order to further
reinforce the message that sex assault cases, particularly this
one, should not be dismissed, [the Secretary of the Air Force]
and [the Chief of Staff of the Air Force] forced Lt Gen
Franklin into retirement at a lower rank. Although the
[commanders and judge advocates] currently involved in this
case will likely not admit to being explicitly pressured, the
8
Major General Dunbar previously served as a member of the Defense Task Force on Sexual Assault in the Military
Services.
5 Misc. Dkt. No. 2014-10
 message that was sent and received by everyone from the
general public to the former [Deputy Judge Advocate
General] and current [Air Force Inspector General] is that
TJAG, [the Chief of Staff of the Air Force], and [the
Secretary of the Air Force] are not impartial, but have an
interest in the outcome of sexual cases and will take action
against those whose actions demonstrate otherwise. 9

The defense argued unlawful command influence existed in various stages of this
case, emanating from various sources including the President of the United States, the
Secretary of Defense, the Chief of Staff of the Air Force, and TJAG. The defense alleged
this unlawful command influence came from both statements and training materials and
constituted both actual and apparent unlawful command influence.

That same day, the defense filed a motion to compel discovery, arguing that
actions by Air Force leadership and members of the Judge Advocate General’s Corps
“unlawfully influenced [the] preferral, referral, and subsequent proceedings in the current
case and caused a defective referral.” The motion also alleged that “statements by
Congress, [Air Force] leadership, and members of the [Judge Advocate General’s] Corps
concerning the appropriate disposition of sexual assault have unlawfully influenced these
proceedings beginning with preferral and have created a climate in which it is impossible
for [the appellee] to receive . . . fair due process.” The defense motion then articulated
the defense’s view why it should receive discovery of correspondence involving the
appellee’s initial chain of command in Europe, senior Air Force officials, and the AFDW
commander. The defense also argued it should receive correspondence relating to
Lt Gen Franklin’s retirement, general sexual assault-related correspondence, SAPR
materials, public affairs materials related to this case, and similar categories of
correspondence.

Following an Article 39(a), UCMJ, 10 U.S.C. § 839(a), hearing, the military judge
largely granted the defense’s motion to compel discovery on 31 March 2014. In reaching
this conclusion, he stated the appellee “is certainly entitled to learn of all of the factors
which have brought him to trial, including whether the senior leaders of the military
establishment have influenced the shaping of media reporting that may undermine [his]
due process rights.” He noted the appellee had alleged certain facts which, if true, would
shift the burden to the Government to prove beyond a reasonable doubt that either there
was no unlawful command influence or that remedial measures would assure the appellee
a fair trial. Drawing an analogy to discovery in the selective prosecution context, the
military judge concluded the Government was required to provide discovery because the
appellee had shown some evidence of unlawful command influence. He therefore

9
The references to the former Deputy Judge Advocate General and the Air Force Inspector General involve
communications from these officials that were attached to the defense’s motion. Both officials expressed some
concern with either Lieutenant General Harding’s involvement in this case or with the actions taken involving
Lieutenant General Franklin.
6 Misc. Dkt. No. 2014-10
ordered the production of several categories of correspondence relating to this case and
sexual assault generally. The military judge’s order covered numerous officials and
organizations, ranging from the squadron commander who preferred charges to the office
of the Secretary of Defense.

Based on a request sent by trial counsel to relevant offices, documents were
provided to the prosecution team on a rolling basis between mid-April and 6 June 2014.
Ultimately, the Government collected almost 8,000 documents totaling approximately
56,000 pages. Government counsel reviewed each document to determine if it was
responsive, relevant, and/or privileged. This process consumed hundreds of man-hours
and involved multiple individuals.

Of these documents, the Government provided a total of approximately 2,000
responsive non-privileged documents to the defense. The Government also identified
approximately 3,500 responsive documents containing, in its view, attorney-client
communications covered by Mil. R. Evid. 502, protected attorney work product, potential
“government information” covered by Mil. R. Evid. 506, or some combination thereof,
with the “overwhelming majority” being in the Mil. R. Evid. 502 category.

The Military Judge’s First Abatement Order

On 6 June 2014, the Government filed a motion for appropriate relief, asking the
military judge to “recognize the government’s assertion of attorney-client privilege and
protection of its attorney work-product in determining satisfaction of [the] Discovery . . .
Order.” The Government contended even in camera review would be inappropriate
because no exception to Mil. R. Evid. 502’s attorney-client privilege applied, there is no
exception to the rule for “constitutionally required” information in the discovery context,
and no provision allowed for in camera review. In its response, the defense asked the
military judge to deny the Government’s motion and compel disclosure of the 3,500
documents, arguing the attorney-client privilege did not apply once a colorable showing
of unlawful command influence has been made and, even if it did, appellee’s
constitutional right to the production of this evidence overcame any such privilege.

On 22 June 2014, the military judge issued his first abatement order. He found the
appellee had raised a “colorable claim” of unlawful command influence in his 25 March
2014 motion and had a “broad right” to discovery in order to assert that colorable claim.
He agreed with the Government that it possessed a privilege over the documents at issue,
and found no listed exception to Mil. R. Evid. 502 applied. 10 However, he also
10
Although expressing some concern about whether the trial counsel was formally instructed by senior Department
of Defense officials to assert this privilege, the military judge held the correspondence at issue is protected by the
attorney-client privilege and no specified exception to the privilege applies. The Government, understandably, does
not challenge that conclusion in this appeal. At oral argument, appellate defense counsel also conceded that the
privilege applies to this correspondence. Therefore, the military judge’s holding concerning the existence and scope
of the privilege is the “law of the case” at this point. United States v. Morris, 49 M.J. 227, 230 (C.A.A.F. 1998)
(“Under the ‘law of the case’ doctrine, an unchallenged ruling ‘constitutes the law of the case and binds the
7 Misc. Dkt. No. 2014-10
concluded that in some circumstances, an accused’s constitutional right to evidence under
the compulsory process clause may overcome an attorney-client privilege. He concluded
that the “means and reasons” and the “mental processes of those attorneys involved in
[transferring the appellee to the AFDW] are central to the question [of] whether the
preferral, investigation, and referral of charges and specifications [here] were tainted by
unlawful command influence, either in appearance or in fact.”

The military judge also noted that the “crime or fraud” exception to privilege (Mil.
R. Evid. 502 (d)(1)) might apply if an individual knowingly and intentionally engaged in
unlawful command influence, or this could constitute misconduct requiring the
application of a judicially-created exception. Although there was no indication that this
intentional activity had occurred, the military judge concluded the Government’s
sweeping claim of privilege prevented the appellee from being able to investigate
whether there was such an “intentional due process violation” in the handling of his
court-martial. Trial counsel asserted that the military judge could rely on the
Government’s recognition of its duty to produce exculpatory information (apparently
including any evidence of an intentional due process violation in the handling of the
appellee’s court-martial). However, the military judge was not convinced that the
requested material would necessarily be produced because trial counsel’s “interpretation
of [exculpatory] evidence” may vary from that of the appellee or the trial judge and it was
“unclear . . . whether the trial counsel can ably and fully investigate the presence of
unlawful command influence” within the commands or TJAG’s office.

After concluding “evidence of central importance is held by the Government but
not produced” to the defense, the military judge abated the proceeding.

The Military Judge’s Second Abatement Order

The Government asked the military judge to reconsider his ruling by: (1) ruling
against the defense in its still-pending motion to dismiss based on unlawful command
influence, defective preferral, and defective referral; (2) ordering no privileged or
protected materials be released; and (3) permitting the trial to continue without
abatement. The Government initially indicated its intention to present live testimony
from multiple witnesses in support of its request for reconsideration. Trial counsel then
filed signed affidavits and/or stipulations of expected testimony from or relating to:

parties.’”) We would otherwise question the existence and scope of the privilege for two reasons. First, several
federal circuits have indicated the attorney-client privilege may not apply to criminal prosecutors to the same extent
as the privilege applies in the civil law context due to the prosecutor’s general duty of public service and the
prosecutor’s higher duty to act in the public interest. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910
(8th Cir. 1997); In re Witness Before the Special Grand Jury 200-2, 288 F.3d 289 (7th Cir. 2002); In re Lindsey,
158 F.3d 1263 (D.C. Cir. 1998); In re Grand Jury Investigation (Rowland), 399 F.3d 527 (2d Cir. 2005). Second, as
discussed later in the body of the opinion, the military judge did not require the Government to specifically assert
what documents were at issue and which documents (or portions thereof) were covered by what privilege. When the
military judge takes up the discovery issue again, we encourage him to develop his ruling further regarding whether
and to what extent the attorney-client privilege applies to the particular documents at issue.
8 Misc. Dkt. No. 2014-10
 (1) The Honorable Eric Fanning, former acting Secretary of the Air Force
(2) Lt Gen Harding, now-retired former TJAG
(3) Maj Gen Dunbar, now-retired former AFDW Commander (GCMCA)
(4) Col Thomas Zimmerman, SJA for the AFDW
(5) Col William Knight, 11th Wing Commander (SPCMCA)
(6) Col David Waters, 11th Wing Vice Commander
(7) Col Heather LoBue, 11th Wing Staff Judge Advocate
(8) Lt Col Colin Huckins, 11th Force Support Squadron Commander
(9) Col Bialke, now-retired former Third Air Force Staff Judge Advocate
(10) Captain David Mitchell, assistant trial counsel

These documents recounted these individuals’ participation in the events surrounding the
appellee’s case, including their thought processes and the reasons for their actions. These
documents largely averred the AFDW commander or her subordinates were given no
explicit or implicit instructions how to handle the appellee’s case, they were specifically
told to resolve the case in whatever matter was deemed appropriate, and they in fact made
their decisions or recommendations independently based on the evidence.

The Government argued these documents demonstrated that after the appellee was
lawfully attached to the AFDW, there was an “investigation by an impartial
[investigating officer] and a legally sufficient recommendation for referral to a qualified
and uninfluenced GCMCA who chose to refer the charge and its specifications.”
Because the documents revealed “every individual at every stage of the proceedings in
this court-martial acted in accordance with his and her responsibilities,” the Government
contended, “there is no [unlawful command influence] to overcome.” The Government
asserted the evidence presented thus far demonstrated no violation of privilege was
necessary to guarantee the appellee a fair trial.

In response, the defense contended it could not be adequately prepared to
challenge the Government’s evidence or make final arguments on its unlawful command
influence motion without access to the correspondence the Government was withholding.
The defense argued the submitted affidavits and stipulations did not address the problem
of apparent unlawful command influence, and they contended that the submitted
documents raised factual questions about the underlying circumstances of this case, as
did some of the non-privileged discovery materials disclosed by the Government. In light
of that, the defense argued the 3,500 withheld documents remained relevant and
necessary on the issue of improper referral and unlawful command influence and were
likely to contain information that would contribute to these defense claims.

Following argument at an Article 39(a), UCMJ, session on 8 August 2014, the
military judge on 15 August 2014 denied the Government’s request for reconsideration
and again ordered the proceedings abated until the Government rescinded its exercise of
privilege.
9 Misc. Dkt. No. 2014-10
 In this order, based on Col Bialke’s affidavit, the military judge found that
Lt Gen Harding implied or told Col Bialke that: (1) congressional interest on military
sexual assault cases was so high that the failure to refer the appellee’s case to trial would
place the Air Force in a difficult position; (2) unless there is a “smoking gun about the
victim’s credibility,” all victims are to be believed and cases referred to trial; and
(3) providing the GCMCA with the SVC memorandum in lieu of the GCMCA personally
meeting with the named victim did not meet the requirements of Air Force Instruction
51-201. The military judge also took note of Lt Gen Harding’s communications with the
acting Secretary of the Air Force, the new GCMCA and the AFDW staff judge advocate
regarding why the appellee should be or was transferred. The military judge found
Lt Gen Harding recommended the case be transferred for another review because
Lt Gen Franklin had failed to consult with the named victim and/or because
Lt Gen Harding believed the first pretrial investigation was incomplete.

The military judge then concluded the evidence gave rise to “the possibility of
government misconduct; that is, the misshaping of legal and other advice to the acting
Secretary of the Air Force as well as to the AFDW [Commander] in order to bring the
[appellee] to trial by general court-martial.” The military judge noted Lt Gen Harding
provided “defective pretrial advice to the Secretary of the Air Force.” This apparently
referred to Lt Gen Harding’s failure to advise that notwithstanding Lt Gen Franklin not
meeting with the named victim, Article 34(a)(2), UCMJ, 10 U.S.C § 834(a)(2), precluded
Lt Gen Franklin from referring the original specifications to a general court-martial once
his staff judge advocate had advised the specifications were not warranted by the
evidence. The military judge also stated Lt Gen Harding’s statement adopting the
position of believing an alleged victim “denoted an expectation from [TJAG] of
inflexibility in the advice tendered from a GCMCA/SJA to a GCMCA.”

The military judge said he had not yet concluded there was any misconduct on the
part of TJAG. He also stated “whether unlawful command influence has been
intentionally exerted on the pretrial processing of the [appellee’s] case, or whether there
is apparent unlawful command influence is not yet answerable.” However, referring to
the appellee’s proffer and the evidence provided, he stated: “[T]here is sufficient
information before this Court to maintain its initial discovery order . . . in full, because
there is evidence of the possibility of misconduct, as well as a colorable claim of
unlawful command influence, which must also be equated to misconduct.”

Finding “evidence of central importance” was being withheld by the Government
through its assertion of privilege and that a privilege cannot overcome the appellee’s
“Sixth Amendment right to a fair trial with full discovery,” the military judge again
abated the proceedings.

10 Misc. Dkt. No. 2014-10
 Appeal Pursuant to Article 62, UCMJ

The Government filed a timely appeal pursuant to Article 62, UCMJ, asking this
court to set aside the military judge’s abatement order. The Government argues the
military judge abused his discretion by abating the proceedings after the Government
(1) complied with his discovery order, (2) proved beyond a reasonable doubt that no
unlawful command influence existed, and (3) properly asserted the attorney-client and
work product privileges.

In contrast, the appellee argues our court does not have jurisdiction to review the
military judge’s ruling and, even if jurisdiction exists, the military judge did not abuse his
discretion because after he properly found the appellee had a constitutional right to a fair
trial untainted by unlawful command influence, he merely placed upon the Government
the choice to assert a privilege or prosecute the appellee.

Jurisdiction

Military appellate courts are courts of limited jurisdiction; prosecution appeals are
not favored and are available only upon specific statutory authorization. United States v.
Wuterich, 67 M.J. 63, 70 (C.A.A.F. 2008). This court has jurisdiction to hear this appeal
under Article 62(a)(1)(A), UCMJ, 10 U.S.C. § 862(a)(1)(A), which authorizes the
Government to appeal “[a]n order or ruling which terminates the proceedings with
respect to a charge or specification” in a court-martial where a punitive discharge may be
adjudged.

Contrary to the appellee’s assertion, we find that the military judge’s ruling
abating the proceedings is tantamount to a termination of proceedings. See United States
v. True, 28 M.J. 1, 2 (C.M.A. 1989) (holding the military judge’s abatement was the
“functional equivalent” of terminating the proceedings). Like True, the military judge’s
abatement order came in response to a situation where “intractability” had set in because
the Government had definitively decided it would not produce the responsive
correspondence. Cf. United States v. Harding, 63 M.J. 65, 67 (C.A.A.F. 2006) (holding
that the military judge’s abatement did not terminate the proceedings where the
Government was willing to comply with the military judge’s order but was unable to
persuade the United States Marshals to timely enforce a warrant).

Standard of Review

We review a military judge’s decision to abate a court-martial based on a
discovery issue for abuse of discretion. United States v. Ivey, 55 M.J. 251, 256 (C.A.A.F.
2001); United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004); United States v.
Bowser, 73 M.J. 889, 895 (A.F. Ct. Crim. App. 2014). “A military judge abuses his
discretion when (1) the findings of fact upon which he predicates his ruling are not
supported by the evidence of record, (2) if incorrect legal principles were used, or (3) if
11 Misc. Dkt. No. 2014-10
his application of the correct legal principles to the facts is clearly unreasonable.”
United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010). Because this issue is before us
pursuant to a Government appeal, we may act only with respect to matters of law.
Article 62(b), UCMJ, 10 U.S.C. § 862(b). We may not make findings of fact, as we are
limited to determining whether the military judge’s factual findings are clearly erroneous
or unsupported by the record. United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F.
1995). “If the findings are incomplete or ambiguous, the ‘appropriate remedy . . . is a
remand for clarification’ or additional findings.” Id. (quoting United States v. Kosek,
4 M.J. 60, 64 (C.M.A. 1994)).

Analysis

The ultimate issue before us is whether the military judge abused his discretion by
abating the proceedings. The military judge found “evidence of central importance” was
included within the approximately 3,500 documents being withheld by the Government
on the basis of attorney-client and related privileges. He abated the proceedings when the
Government declined to produce the documents pursuant to the court’s order. Under the
unique circumstances of this case, we find the military judge’s ruling incomplete and
ambiguous in that he abated the proceedings without taking sufficient actions to define
what materials were appropriate for in camera review. Because the military judge’s
findings are incomplete and ambiguous, we remand for clarification and action consistent
with this opinion.

The military judge issued a wide-ranging discovery order in this case. Despite the
Government’s earlier representation that it would complete a privilege log, it broadly
asserted privilege over the majority of the documents in toto without describing what
these documents were, why they were covered by Mil. R. Evid. 502 or some other
privilege, or whether portions of the documents were not privileged. The military judge
accepted the Government’s broad claims of privilege without requiring the Government
to detail what the documents were or exactly what privilege was claimed over which
document. The military judge initially ordered the Government to disclose all responsive
documents directly to the defense. Later, he stated he would review the documents over
which the government claimed privilege in camera; however, he stated he would do so
“reluctantly.”

Normally, in camera review is an appropriate mechanism to resolve competing
claims of privilege and right to review information. R.C.M. 703(f)(4)(C); United States
v. Zolin, 491 U.S. 554, 569 (1989) (noting the Court “has approved the practice of
requiring parties who seek to avoid disclosure of documents to make the documents
available for in camera inspection, and th[is] practice is well established in the federal
courts”). Pursuant to United States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997), and
United States v. Bowser, 73 M.J. 889 (A.F. Ct. Crim. App. 2014), the Government does
not suffer a cognizable harm to a privilege it holds merely because the military judge
orders documents to be produced for in camera review. However, in camera review is
12 Misc. Dkt. No. 2014-10
not automatically appropriate every time one party seeks information over which another
claims privilege. In United States v. Klemick, 65 M.J. 576 (N.M. Ct. Crim. App. 2006),
our sister service court held the military judge did not err in granting a Government
motion to compel production of psychotherapist-patient records of a servicemember’s
wife for in camera review and then releasing a portion of those records to the parties.
The court stated that “the threshold for in camera review was a showing by the moving
party of ‘a specific factual basis demonstrating a reasonable likelihood that the records
contain relevant information necessary to a determination of guilt or innocence and is not
merely cumulative to other evidence available.’” Id. at 579–80 (quoting Wisconsin v.
Green, 646 N.W.2d 298, 303 (Wis. 2002)). A similar test is appropriate here; in other
words, the military judge should determine whether a sufficient factual basis exists
demonstrating a reasonable likelihood that the documents over which the Government
claimed privilege contained information necessary to his determination of the defense’s
unlawful command influence motion. See also Zolin, 491 U.S. at 572 (“[T]he judge
should require a showing of a factual basis adequate to support a good faith belief by a
reasonable person that in camera review of the materials may reveal evidence to establish
a claim that [an exception to privilege] applies.”)

Applying this test, we find the military judge has not adequately developed the
record as to whether the defense provided sufficient facts demonstrating a reasonable
likelihood that the records contain relevant, non-cumulative information, necessary for
disposition of the defense’s unlawful command influence motion. We reach this
conclusion on two bases.

First, the military judge did not specifically identify how the defense had raised
some evidence of unlawful command influence. His first ruling broadly discussed
concerns with the transfer of this case for a second disposition despite the fact that no
new evidence had been produced. He did not sufficiently discuss any specific actions he
believed constituted some evidence of unlawful command influence or who was
allegedly influenced by these actions. Instead, the military judge summarily concluded
that “[t]he Accused has raised a colorable claim of unlawful command influence before
this Court in a separate motion.” However, in that same ruling, he wrote, “There is, at
present, no indication that there is a knowing or intentional injection of unlawful
command influence.” Later, after the Government introduced detailed affidavits and
stipulations of expected testimony from numerous officials disavowing any unlawful
influence in this case, the military judge again found the defense made a colorable
showing of unlawful command influence. He cited the unusual action of transferring the
case to a new convening authority after the first GCMCA declined to refer charges, the
lack of any evidence of deficiencies in the first Article 32, UCMJ, report, and the
comments allegedly made by Lt Gen Harding to Col Bialke. However, he did not clearly
specify what action he believed constituted some evidence of unlawful command
influence, how that action might have impacted this case, or who might have been
influenced by these actions, particularly in light of the Government’s numerous affidavits
and stipulations of expected testimony. To the extent that the military judge’s order
13 Misc. Dkt. No. 2014-10
rested on concerns of apparent, rather than actual, unlawful command influence, the
military judge did not clearly spell out how these actions might have caused “an
objective, disinterested observer, fully informed of all the facts and circumstances, [to]
harbor a significant doubt about the fairness of the proceeding.” United States v. Lewis,
63 M.J. 405, 415 (C.A.A.F. 2006).

Second, the military judge did not consider other methods of determining whether
specific documents might contain relevant information to the defense’s unlawful
command influence claim, such as requiring the Government to categorize or catalog the
responsive documents. Had the military judge required the Government to categorize or
catalog the responsive documents (including to/from information, the date of a document,
a brief description of the document’s subject, and an assertion as to why each document
was privileged), he might have concluded that only a subset of the documents were
relevant to the defense’s unlawful command influence motion. He also might have
determined that some of the documents at issue were not privileged or that an exception
to the privilege applied. Given the number of responsive documents and the breadth of
the military judge’s discovery order, further screening by the military judge would likely
have uncovered further information from which the military judge and this court could
evaluate the claim of privilege, the existence or non-existence of any exception to the
privilege, and the relevance of the documents to any matter at issue in the case such as
possible unlawful command influence. An order to simply produce the documents to
opposing counsel without the military judge taking a more active role in screening the
responsive documents is problematic based on the facts of this case.

The military judge could have addressed the Government’s concern about
releasing documents for in camera review by directing the Government to complete a
privilege log, as it had earlier agreed to do. 11 A privilege log is a common method used
in civil litigation to balance a party’s right to discovery with another party’s claim of
privilege within the requested information. See FED. R. CIV. P. 26(b)(5). 12 In creating
this rule, the drafters noted: “Although the person from whom the discovery is sought
decides whether to claim a privilege or protection, the court ultimately decides whether,
if this claim is challenged, the privilege or protection applies. Providing information
pertinent to the applicability of the privilege or protection should reduce the need for in
camera examination of the documents.” 1993 Advisory Committee’s Note on FED. R.
CIV. P. 26(b)(5). While this rule applies to civil litigation, this or a similar process would

11
As part of its original discovery request in March 2014, the defense requested that trial counsel create a
“privilege/non-disclosure log” for any responsive documents which the Government did not consider discoverable
due to relevance, privilege, or some other justification, so this log could be presented to the military judge for
inspection and a judicial determination of discoverability. In its response, trial counsel agreed to create and provide
such a log; however, there is no indication in the record that a log was created.
12
“When a party withholds information otherwise discoverable by claiming that the information is privileged or
subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the
nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that,
without revealing information itself privileged or protected, will enable other parties to assess the claim.” FED. R.
CIV. P. 26(b)(5).
14 Misc. Dkt. No. 2014-10
have greatly aided in clarifying the military judge’s ruling and in defining the scope of
the issue before us. Requiring the Government to complete a privilege log and then
making specific findings about which documents are appropriate for in camera review
would more precisely identify what documents are at issue, why in camera review is or is
not necessary, and whether the Government has properly asserted privilege.

The military judge acknowledged the problem created by the Government’s
generalized assertion of privilege when he noted that not every communication between
an attorney and a client is privileged, and stated that “[b]ecause the Government has
asserted a broad privilege rather than seek an in camera review, this Court cannot
properly ascertain which documents are privileged.” Instead of delving into this issue
further, the military judge simply abated the proceedings until “the Government rescinds
[sic] the privilege.”

In light of this, we find the military judge’s ruling is incomplete and ambiguous in
that he abated the proceedings without taking sufficient steps to define what materials
were appropriate for in camera review. We stress three points concerning the limited
scope of this ruling. First, we do not hold that the military judge may not later abate the
proceedings if he ultimately orders in camera review of any documents and the
Government nonetheless fails to comply with that order. As we stated in Bowser, after a
military judge makes an initial determination that a review is necessary, in camera review
is typically an appropriate mechanism to make judicial decisions about privilege.
Second, we do not hold that military judges must follow the process we have outlined
here in every case that may require in camera review of materials over which a privilege
is asserted. Rather, we hold that in this unique case involving voluminous materials,
numerous sources of correspondence, broad assertions of privilege, and vague threshold
findings, the military judge should have considered the viability of other options to
narrow the scope of the dispute before abating the proceedings. If the military judge
follows the process outlined above or another appropriate process designed to clarify the
his ruling regarding the assertion of privilege and the relevancy of the material sought,
any reviewing court will have a clearer ruling to review. This would also introduce a
higher level of rigor to the analysis, helping to ensure the military judge does what
military judges do less formally in most cases involving in camera review of materials
over which privilege is asserted: determine the scope of the responsive materials, define
what privilege is being asserted over which documents, and conclude what materials
must be reviewed in camera to resolve the issue. Third, although the abuse of discretion
standard normally provides trial judges with a significant degree of deference, a military
judge abuses his or her discretion when he or she uses incorrect legal principles. Ellis, 68
M.J. at 344. Based on the limited record and the ambiguous ruling before us, we cannot
conclude that the military judge’s decision to abate the proceedings was based on
appropriate legal principles. The military judge failed to clearly set forth his rationale for
determining the applicability of any privilege, what documents may be appropriate for in
camera review, and the relevance of any materials at issue. Further development of the

15 Misc. Dkt. No. 2014-10
record, perhaps using the suggestions we provide, will enable meaningful appellate
review of any future abatement order or other remedy.

Today’s ruling only addresses what is required before the military judge orders in
camera review of these materials. In the event the military judge requires disclosure of
materials to the defense after in camera review, the Government may elect at that point to
pursue its options to raise this matter for this court’s consideration.

Conclusion

On consideration of the appeal by the United States under Article 62, UCMJ, it is
by the court on this 13th day of January 2015,

ORDERED:

The appeal of the United States under Article 62, UCMJ, is hereby GRANTED in
that the military judge failed to take sufficient steps to define what materials were
appropriate for in camera review before ordering abatement. The record of trial is
returned to the military judge for clarification and action consistent with this opinion.
We make no ruling as to the issue of whether the defense is entitled to receive any of the
communications at issue pursuant to its unlawful command influence motion. After the
military judge takes sufficient steps to define what materials are appropriate for in camera
review and conducts this review, if he orders materials provided to the defense, the
Government may either comply with the order or appeal any subsequent order for
abatement or other remedy within this court’s jurisdiction to review.

FOR THE COURT

LAQUITTA J. SMITH
Appellate Paralegal Specialist

16 Misc. Dkt. No. 2014-10