United States v. Dugan

UNITED STATES, Appellee

v.

Daniel A. DUGAN, Airman
U.S. Air Force, Appellant

No. 02-0561

Crim. App. No. 34477

United States Court of Appeals for the Armed Forces

Argued December 10, 2002

Decided June 2, 2003

CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.

Counsel

For Appellant: Major Kyle R. Jacobson (argued); Colonel Beverly
B. Knott and Major Terry L. McElyea (on brief); Major Jeffrey A.
Vires.

For Appellee: Lieutenant Colonel Lance B. Sigmon (argued);
Lieutenant Colonel LeEllen Coacher (on brief); Colonel Anthony
P. Datillo.

Military Judge: Mary M. Boone

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Dugan, No. 02-0561/AF

Chief Judge CRAWFORD delivered the opinion of the Court.

Pursuant to mixed pleas, Appellant was convicted by a

general court-martial of failure to go to his appointed place of

duty, unauthorized absence, wrongful use of the drug commonly

known as ecstasy, dishonorable failure to pay a just debt, and

wrongful use and possession of a false military identification

card, in violation of Articles 86, 112a, and 134, Uniform Code

of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 886, 912a,

and 934, respectively. Appellant was sentenced by a panel of

officer members to a bad-conduct discharge, confinement for nine

months, total forfeitures, and reduction to E-1. The convening

authority reduced the forfeitures but otherwise approved this

sentence. The Air Force Court of Criminal Appeals affirmed the

findings and sentence in an unpublished opinion. United States

v. Dugan, No. ACM 34477 (A.F. Ct. Crim. App. March 20, 2002).

This Court specified the following issues for review:

I

WHETHER A COURT MEMBER’S ALLEGATIONS
REGARDING STATEMENTS MADE BY OTHER COURT
MEMBERS DURING SENTENCE DELIBERATION
REASONABLY RAISES A QUESTION AS TO “WHETHER
EXTRANEOUS PREJUDICIAL INFORMATION WAS
IMPROPERLY BROUGHT TO THE ATTENTION OF THE
MEMBERS OF THE COURT-MARTIAL, WHETHER ANY
OUTSIDE INFLUENCE WAS IMPROPERLY BROUGHT TO
BEAR ON ANY MEMBER, OR WHETHER THERE WAS
UNLAWFUL COMMAND INFLUENCE.” MILITARY RULE
OF EVIDENCE 606(b).

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II

IF SO, WHETHER THE MILITARY JUDGE ABUSED HER
DISCRETION BY NOT CONDUCTING A POST-TRIAL
SESSION UNDER ARTICLE 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2000), TO INQUIRE INTO THE VALIDITY OF
APPELLANT’S SENTENCE IN LIGHT OF THE ALLEGATIONS.

For the reasons that follow, we remand this case for a

factfinding hearing pursuant to United States v. DuBay, 17

C.M.A. 147, 37 C.M.R. 411 (1967).

Factual Background

Several weeks before Appellant’s court-martial, the

convening authority held a Commander’s Call, at which many of

the convening authority’s subordinate commanders were present.

One of the things the convening authority spoke about at that

meeting was military justice, and exactly what he said became a

topic of voir dire at Appellant’s court-martial.

During group voir dire of the nine original court members,

the military judge asked: “Does any member, having read these

Charges and Specifications, believe that you would be compelled

to vote for any particular punishment, solely because of the

nature of these offenses?” All the members responded in the

negative. The military judge then further asked: “Can each of

you be fair, impartial, [and] open-minded in your consideration

of an appropriate sentence?” All the members responded in the

affirmative. Trial defense counsel also asked the members: “Do

any of you feel that such an offense, using ecstasy, would

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require a specific punishment?” Again, they all responded in

the negative.

Thereafter, trial defense counsel asked them: “Was anyone

– did anyone here attend [the convening authority’s] Commander’s

Call several weeks ago?” In answer, four members stated they

attended the meeting and five stated they did not. The four who

attended were Colonel (Col) Berry, Lieutenant Colonel (LtCol)

Spence, LtCol Freeman, and Major (Maj) Robertson. Following up

on these responses, trial defense counsel questioned Col Berry

and LtCol Spence individually about the Commander’s Call. LtCol

Freeman and Maj Robertson were not questioned individually about

this subject.

As to Col Berry, trial defense counsel asked: “[T]he

Commander’s Call that you went to . . . do you remember [the

convening authority] mentioning anything about drug use on

base?” Col Berry answered: “Yes, he was very emphatic about –

and I don’t think he used these words – but, essentially, that

drug use was inconsistent with military service.” As to LtCol

Spence, trial defense counsel asked: “[The] Commander’s Call

that you went to a couple of weeks ago. Do you remember if he

said anything about drug use?” LtCol Spence answered: “‘It

seems like it’s prevalent here on the Gulf Coast.’ I’m going to

assume that he did the normal commander thing and then said,

‘It’s not compatible with military service.’”

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In response to further questioning by trial defense

counsel, Col Berry and LtCol Spence each indicated that no

specific reference was made at the Commander’s Call to Appellant

or his impending court-martial.

At the conclusion of individual voir dire, three court

members were challenged off the panel, including Col Berry.

This left six court members to hear the contested portion of the

case and then to adjudge an appropriate sentence. Of those six,

three attended the Commander’s Call, including LtCol Spence, who

served as the president of the court-martial panel. The other

three panel members did not attend the meeting, and a post-trial

letter written by one of them – Second Lieutenant (2Lt) Greer –

lies at the heart of this appeal.1

After appellant’s court-martial, 2Lt Greer, the junior

member of the court-martial panel, provided trial defense

counsel a letter for submission to the convening authority as

part of Appellant’s request for clemency.2 The letter described

four concerns 2Lt Greer had regarding the panel members’

sentencing deliberations. First, she worried that “everyone did

not agree that [Appellant’s mental illness] should be considered

1
The letter was neither signed nor sworn to by 2Lt Greer. Nonetheless,
during oral argument, the Government agreed it could be treated as
such.
2
See Rules for Courts-Martial 1105, 1107 (convening authority must
consider clemency matters submitted by accused before taking final
action on sentence).

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as a mitigating factor.”3 Second, she believed that because one

member stated Appellant would be enrolled in a substance abuse

program if he was further confined,4 the other members “took it

as fact and used it in their decision making process.” Third,

she noted that “a couple of panel members expressed the notion

that a Bad Conduct Discharge was a ‘given’ for a person with

these charges[.]”

Finally, 2Lt Greer found “most disconcerting . . . the

mention of a recent Commander’s Call in which [the convening

authority] was said to have discussed the increasing problem of

Ecstacy use[.]” In that regard, she wrote:

[A] panel member reminded us that our sentence
would be reviewed by the convening authority
and we needed to make sure our sentence was
sending a consistent message. Another member
pointed out that we needed to make sure it
didn’t look like we took the charges too lightly
because those reviewing our sentence wouldn’t
necessarily be aware of the mitigating factors.
He or she said it was especially important
because our names would be identified as panel
members.

Procedural Background

Having received this letter, trial defense counsel

requested that the military judge convene a post-trial session

pursuant to Article 39(a) so the defense could question the

3
A defense expert testified that Appellant suffered from post-traumatic
stress disorder as a result of a brutal assault he experienced, and
that he could not be effectively treated while in confinement.
4
Appellant served 150 days of pretrial confinement before his court-
martial commenced.

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members about these matters. The military judge denied the

request, however, and ruled as follows:

That some members may have concluded [the
accused’s mental illness] deserved less
weight than 2Lt Greer does not warrant such
an invasion into their deliberative process.
Also, that some member(s) might think that
lengthier confinement might provide the accused
with more treatment options is again a
deliberative process this court does not feel
appropriate to invade. Similarly, after having
heard all of the facts in this case, if some
member[s] felt a bad conduct discharge was a
“given” in this case, that does not impeach their
responses during voir dire that they were not
predisposed to giving such a sentence. . . .

. . . There is no evidence that anyone within the
panel exerted any command influence over any
other panel member[,] and any references to [the
convening authority’s Commander’s Call] during
the deliberative process did not appear to chill
the deliberative process. . . . This court does
not find it appropriate to violate the sanctity
of the deliberative process based upon the
statement provided by 2Lt Greer.

At the Court of Criminal Appeals, Appellant “concede[d]

that most of the ‘areas of concern’ in the [letter] do not call

into question the validity of his sentence.” Dugan, No. ACM

34477, slip op. at 4. However, he asserted that the letter

“raises the issue of unlawful command influence and that the

[military] judge erred by failing to convene a post-trial

hearing.” Id. at 3. He therefore requested a DuBay hearing on

the matter to determine the validity of the sentence. The Court

of Criminal Appeals denied that request, concluding there was

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“no evidence of command influence.” Id. at 5. In doing so,

that court stated:

[T]he convening authority repeated what everyone
in the Air Force has heard many times before,
that drug use is incompatible with military
service. The issue before us is whether there is
any evidence that the convening authority’s
purpose in repeating this often used phrase at a
command meeting was to influence the court
members.

. . . The convening authority informed the
attendees that drug use was prevalent on the gulf
coast of Florida, and that it was incompatible
with military service. Neither of these
assertions is novel or shocking, and common sense
tells us that they were not intended to influence
the outcome of any court-martial.

We also find that the alleged comments that
the convening authority would know their names
and review the sentence, and that the sentence
should not appear to be too lenient, do not
support the [A]ppellant’s claim of unlawful
command influence. Rather, they reflect the
reality of the military justice system . . . .
[C]ourt members know the convening authority
selects them to serve on the court-martial and
reviews the sentence.

. . . [T]he convening authority’s exercise of his
statutory responsibility and the members’
awareness of that role, without more, does not
amount to unlawful command influence because no
policy or preference can be imputed to the
commander for doing what he is required to do.

Id. at 4-5 (citations omitted).

Discussion

1. Introduction

“[L]ong-recognized and very substantial concerns support

the protection of jury deliberations from intrusive inquiry.”

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Tanner v. United States, 483 U.S. 107, 127 (1987). As a result,

“[d]eliberations of [court-martial] members ordinarily are not

subject to disclosure.” Rule for Courts-Martial [hereinafter

R.C.M.] 923 discussion. “The purpose of this rule is to protect

freedom of deliberation, protect the stability and finality of

verdicts, and protect court members from annoyance and

embarrassment.” United States v. Loving, 41 M.J. 213, 236

(C.A.A.F. 1994) (internal quotations omitted).

Like its counterpart in the federal civilian system,

Military Rule of Evidence 606(b) [hereinafter M.R.E.] implements

this rule by stating:

Upon an inquiry into the validity of the findings
or sentence, a member may not testify as to any
matter or statement occurring during the course
of the deliberations of the members of the court-
martial or, to the effect of anything upon the
member’s or any other member’s mind or emotions
as influencing the member to assent to or dissent
from the findings or sentence or concerning the
member’s mental process in connection therewith,
except that a member may testify on the question
[1] whether extraneous prejudicial information
was improperly brought to the attention of the
members of the court-martial, [2] whether any
outside influence was improperly brought to bear
upon any member, or [3] whether there was
unlawful command influence. Nor may the member’s
affidavit or evidence of any statement by the
member concerning a matter about which the member
would be precluded from testifying be received
for these purposes.

See also Fed. R. Evid. 606(b)(identical to M.R.E. 606(b) other

than reference to military issue of unlawful command influence);

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R.C.M. 923, 1008 (standard for impeachment of findings and

sentence).

Thus, under M.R.E. 606(b), there are three circumstances

that justify piercing the otherwise inviolate deliberative

process to impeach a verdict or sentence: “(1) when extraneous

information has been improperly brought to the attention of the

court members; (2) when outside influence has been brought to

bear on a member; and (3) when unlawful command influence has

occurred.” United States v. Accordino, 20 M.J. 102, 104 (C.M.A.

1985). Appellant’s case involves the first and third of these

categories.

2. Extraneous Information

The first two concerns 2Lt Greer expressed in her letter

were: (1) other court members did not believe, as she did, that

Appellant’s mental condition was a mitigating factor to consider

when determining an appropriate sentence, and (2) other court

members may have been influenced by one member’s statement that

Appellant would be enrolled in a substance abuse program if he

was sentenced to confinement. As to the first of these

concerns, we agree with the military judge that the members were

free to assign to Appellant’s mental condition whatever weight

they chose, including no weight at all. Such a decision “raises

[nothing] other than internal matters regarding the

deliberations of the members of the court-martial on sentence”

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and, therefore, cannot be inquired into post-trial. United

States v. Straight, 42 M.J. 244, 250 (C.A.A.F. 1995); see M.R.E.

606(b).

Regarding the possibility that one of the members informed

the others that Appellant would be enrolled in a substance abuse

program if sentenced to confinement, appellate defense counsel

argues this was “extraneous prejudicial information” within the

meaning of M.R.E. 606(b) because “if relied upon,” the members

“would increase the term of confinement they would otherwise

impose in order to ‘help’ [A]ppellant[.]” This, counsel argues,

calls into question the validity of Appellant’s sentence and

justifies a rehearing. We disagree.

In Straight, we stated:

[E]vidence of information acquired by a court
member during deliberations from a third party or
from outside reference materials may be
extraneous prejudicial information which is
admissible under [M.R.E.] 606(b) to impeach the
findings or sentence. [However], the general and
common knowledge a court member brings to
deliberations is an intrinsic part of the
deliberative process, and evidence about that
knowledge is not competent evidence to impeach
the members’ findings or sentence.

42 M.J. at 250.

Here, even if one member did tell the others that Appellant

would receive substance abuse counseling if sentenced to

confinement, and even if the others did factor that into their

sentence determination, it would not involve extraneous

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prejudicial information. To the contrary, it “would fall

squarely within the deliberative process which is protected by

[M.R.E.] 606(b).” United States v. Combs, 41 M.J. 400, 401

(C.A.A.F. 1995)(court member’s statement that sentence would

have been less if appellant had cooperated with police was not

competent evidence to impeach sentence). Thus, it cannot be

considered by this or any other court as impeaching the validity

of Appellant’s sentence. See McDowell v. Calderon, 107 F.3d

1351, 1366-67 (9th Cir. 1997)(juror’s statement to other jurors

about parole consequences of sentence not admissible under Fed.

R. Evid. 606(b)); Silagy v. Peters, 905 F.2d 986, 1008-09 (7th

Cir. 1990)(juror’s statements to other jurors about impact of

death versus life sentence on actual time served not admissible

under Fed. R. Evid. 606(b)); United States v. Motsinger, 34 M.J.

255, 257 (C.M.A. 1992)(letter from court-martial president

concerning reasons for imposing bad-conduct discharge “may not

be considered”).

3. Unlawful Command Influence

The third and fourth concerns expressed by 2Lt Greer in her

letter were: (1) some members stated a bad-conduct discharge was

a “given” in this case, and (2) some members made statements

suggesting they were influenced by the message put out by the

convening authority at his Commander’s Call. As to these

concerns, we conclude they make a DuBay hearing necessary to

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determine whether unlawful command influence existed during the

sentencing phase of Appellant’s court-martial. Under the

circumstances of this case, such statements fall squarely within

the “unlawful command influence” exception of M.R.E. 606(b) and

are not protected from disclosure.

We begin by noting that to the extent the military judge

and the Court of Criminal Appeals concluded Appellant did not

meet his initial burden of raising the issue of unlawful command

influence, they erred. At trial and on appeal, “[t]he defense

has the initial burden of producing sufficient evidence to raise

unlawful command influence.” United States v. Ayala, 43 M.J.

296, 299 (C.A.A.F. 1995). “The burden of proof is low, but more

than mere allegation or speculation. The quantum of evidence

required to raise unlawful command influence is ‘some

evidence.’” United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F.

2002)(quoting United States v. Biagase, 50 M.J. 143, 150

(C.A.A.F. 1999)).

“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.” Biagase, 50 M.J. at 150. On appeal, an

appellant must “(1) show facts which, if true, constitute

unlawful command influence; (2) show that the proceedings were

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unfair; and (3) show that the unlawful command influence was the

cause of the unfairness.” Id. (citing United States v.

Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994)). The defense has met

its burden in this appeal.

“We have long held that the use of command meetings to

purposefully influence the members in determining a court-

martial sentence” constitutes unlawful command influence in

violation of Article 37, UCMJ, 10 U.S.C. § 837 (2000).5 United

States v. Baldwin, 54 M.J. 308, 310 (C.A.A.F. 2001). We also

have held that regardless of a commander’s intent, “the mere

‘confluence’ of the timing of such meetings with members during

ongoing courts-martials and their subject matter dealing with

court-martial sentences can require a sentence rehearing.” Id.

Thus, in United States v. Brice, 19 M.J. 170 (C.M.A. 1985), we

reversed and remanded for a new trial because the members of an

ongoing court-martial attended a Commandant’s meeting where drug

problems in the military were discussed. In doing so, however,

we also stated:

We do not in any way wish to be viewed as
condemning the contents of the Commandant’s
remarks since the drug problem in the military
demands command attention; nor do we feel that
such remarks necessarily constitute illegal
command influence. Instead, we base our decision
on the confluence of subject and timing,
5
Article 37, Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. § 837 (2000), states: “No person subject to [the UCMJ] may
attempt to coerce or, by any unauthorized means, influence the action
of a court-martial . . . or any member thereof, in reaching the
findings or sentence in any case[.]”

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particularly as they affect the minds – however
subtly or imperceptibly – of the triers of
fact[.]

Id. at 172 n.3 (citing United States v. Grady, 15 M.J. 275, 276

(C.M.A. 1983)).

With these principles in mind, we turn now to Appellant’s

case. At the outset, we note there is nothing in 2Lt Greer’s

letter to indicate the convening authority had any improper

intent when he conducted the Commander’s Call, or that he

purposefully used that meeting to influence Appellant’s or any

other court-martial. Nor does the record in its current form

contain any other evidence suggesting such an intent or design

on the part of the convening authority. As a result, we have no

reason presently to question either the lawfulness of the

Commander’s Call or the correctness of the Court of Criminal

Appeals’s finding that the content of the Commander’s Call was

“neither . . . novel or shocking.”

We also recognize that Appellant’s court-martial took place

several weeks after the Commander’s Call, in stark contrast to

the Baldwin and Brice cases, where court members attended

command meetings while they were actually sitting as court-

martial panels. We are therefore mindful that to the extent the

timing of such meetings -– coupled with their content -- alone

gives rise to an inference of unlawful command influence, such

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an inference is not warranted in appellant’s case, given the

record as it now stands.6

We hold, however, that 2Lt Greer’s letter does constitute

some evidence that unlawful command influence may have taken

place during the sentencing phase of Appellant’s court-martial.

2Lt Greer’s letter is more than mere speculation because it is

“detailed” and “based on her own observations.” Baldwin, 54

M.J. at 311. Moreover, it contains assertions which, if true,

suggest that members of Appellant’s court-martial who attended

the Commander’s Call unfairly based his sentence, at least in

part, on a concern they would be viewed unfavorably by the

convening authority (their commanding officer) if they did not

impose a sentence harsh enough to be “consistent” with the

convening authority’s “message” at the Commander’s Call that

drug use is incompatible with military service.

Such a possibility we cannot ignore, for it is exactly this

type of command presence in the deliberation room -– whether

intended by the command or not -- that chills the members’

independent judgment and deprives an accused of his or her

constitutional right to a fair and impartial trial. For these

reasons, we conclude that a DuBay hearing is necessary to

determine whether unlawful command influence existed during the

6
We also recognize that Appellant’s case, as in United States v. Brice,
19 M.J. 170 (C.M.A. 1985), involves both a court-martial for drug use
and a command meeting dealing with drug use in the military.

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sentencing phase of Appellant’s court-martial. Furthermore,

because Appellant has successfully raised the issue of unlawful

command influence, it is the Government that must now rebut the

presumption of unlawful command influence

(1) by disproving the predicate facts on which
the allegation of unlawful command influence is
based; (2) by persuading the [DuBay] judge . . .
that the facts do not constitute unlawful command
influence; . . . or [3] . . . by persuading the
. . . [DuBay judge] that the unlawful command
influence had no prejudicial impact on the court-
martial.

Biagase, 50 M.J. at 151. “Whichever tactic the Government

chooses, the quantum of evidence required is proof beyond a

reasonable doubt.” Stoneman, 57 M.J. at 41.

Having said that, we note that when unlawful command

influence has been directed at court members, the Government’s

third option under Biagase is limited by M.R.E. 606(b). This

rule prohibits inquiry into two types of matters: (1) “any

matter or statement occurring during the course of the

deliberations,” and (2) “the effect of anything upon [a]

member’s or any other member’s mind or emotions as influencing

the member to assent to or dissent from the findings or sentence

or concerning the member’s mental process in connection

therewith[.]”

The rule has three exceptions to the first prohibition, one

of which permits testimony about “any matter or statement”

occurring during the deliberations when there is a “question

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whether . . . there was unlawful command influence.” The

exceptions, however, do not permit circumvention of the second

prohibition (inquiry into the effect on a member). See Stephen

A. Saltzburg, et al., Military Rules of Evidence Manual 722 (4th

ed. 1997)(“Members may testify “with respect to objective

manifestations of impropriety” but may not testify “if the

alleged transgression is subjective in nature.”); see also

3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal

Evidence § 606.04[2][c] (2d ed. 1997)(citing examples of

subjective and objective evidence of impropriety).

Thus, in this case, M.R.E. 606(b) permits voir dire of the

members regarding what was said during deliberations about the

commander’s comments, but the members may not be questioned

regarding the impact of any member’s statements or the

commander’s comments on any member’s mind, emotions, or mental

processes.

If the military judge who presides at the DuBay hearing is

not satisfied beyond a reasonable doubt that unlawful command

influence did not exist during the sentencing phase of

Appellant’s court-martial, or that one or more members did not

exert the influence of superior rank on a junior member or

purport to wear the mantle of the convening authority by

conveying to the other members his or her interpretation of the

convening authority’s message, that judge shall set aside

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Appellant’s sentence and order a sentence rehearing. If,

however, the military judge finds there were no infirmities in

the sentencing process, he or she shall return the record, along

with the military judge’s findings of fact and conclusions of

law, to the Court of Criminal Appeals for further review under

Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).

Finally, in conducting the DuBay proceeding, the military

judge shall not voir dire any member as to “the effect of

anything upon [a] member’s . . . mind or emotions as influencing

[a] member to assent to or dissent from the findings or sentence

or . . . [a] member’s mental process in connection therewith.”

M.R.E. 606(b).

Decision

The decision of the United States Air Force Court of

Criminal Appeals is affirmed as to findings but set aside as to

sentence. The record of trial is returned to the Judge Advocate

General of the Air Force for submission to a convening authority

for a hearing on Appellant’s claim of unlawful command

influence. If a hearing is impracticable, the convening

authority may set aside the sentence and order a sentence

rehearing. If a hearing is conducted, the military judge shall

make findings of fact and conclusions of law and then shall

either order a sentence rehearing or return the record of trial

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to the Court of Criminal Appeals for further review consistent

with this opinion.

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