United States v. Givens

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Ronald C. GIVENS, Specialist
United States Army, Appellant
No. 21-0086
Crim. App. No. 20190132
Argued October 19, 2021—Decided April 5, 2022
Military Judge: David H. Robertson
For Appellant: Captain Joseph A. Seaton Jr. (argued); Colo-
nel Michael C. Friess and Major Jodie L. Grimm (on brief);
Major Joyce C. Liu and Captain Catherine E. Godfrey.
For Appellee: Captain A. Benjamin Spencer (argued); Colo-
nel Steven Haight, Lieutenant Colonel Craig Schapira, and
Lieutenant Colonel Wayne H. Williams (on brief).
Judge SPARKS delivered the opinion of the Court, in
which Judge HARDY and Judge MAGGS joined. Chief
Judge OHLSON filed a dissenting opinion, in which Sen-
ior Judge EFFRON joined.
_______________

Judge SPARKS delivered the opinion of the Court.
Consistent with his plea, Appellant was convicted at a
general court-martial of one specification of assault consum-
mated by a battery, in violation of Article 128, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 928 (2012 & Supp. IV
2016). Contrary to his pleas, a panel of members with enlisted
representation convicted Appellant of one specification each
of making a false official statement, larceny of military prop-
erty, assault consummated by a battery, communicating a
threat, and child endangerment, in violation of Articles 107,
121, 128, and 134, UCMJ, 10 U.S.C. §§ 907, 921, 928, 934
(2012 & Supp. IV 2016), respectively. 1 After reviewing the le-
gal and factual sufficiency of the findings, the United States

1 Appellant later amended his plea and pleaded guilty with ex-
ception to Specification 3 of Charge III.
 United States v. Givens, No. 21-0086/AR
Opinion of the Court

Army Court of Criminal Appeals found the evidence of child
endangerment legally insufficient, and accordingly, dis-
missed that offense. United States v. Givens, No. ARMY
20190132, 2020 CCA LEXIS 366, at *4–5, 2020 WL 6146572,
at *1 (A. Ct. Crim. App. Oct. 19, 2020) (unpublished).
Two days before trial was scheduled to begin, Appellant
filed a motion for appropriate relief based on claims of defec-
tive preferral and accusatory unlawful command influence.
The military judge denied the motion on the grounds that it
was untimely and good cause did not exist to excuse the un-
timely filing.
We granted review to determine whether the military
judge erred in denying Appellant’s motion on procedural
grounds or if the military judge abused his discretion in not
finding good cause shown for the delay. 2 We hold that the mil-
itary judge did not err in his ruling by denying Appellant’s
motion on procedural grounds and did not abuse his discre-
tion by ruling good cause was not established.
Background
The charges at issue in this appeal arose from Appellant’s
poor management of his personal and financial affairs. Fol-
lowing two separate series of events, charges and specifica-
tions were drafted against Appellant by the trial counsel, CPT
JE. 3 CPT JE brought these charges to CPT CF, Appellant’s
company commander, in April 2018, and the convening au-
thority referred these charges to a general court-martial in
June 2018.
In August 2018, charges were withdrawn to permit an Ar-
ticle 32(a), UCMJ, 10 U.S.C. § 832(a) (2018) hearing, which
resulted in the preferral of an additional charge of adultery

2 We granted review of the following issue: “Whether the mili-
tary judge erred in denying the defective preferral/unlawful com-
mand influence motion on procedural grounds.”
3 All names, other than Appellant’s, are referenced by initial or
official title. These identities are equivalent to the pseudonyms
used by the Court of Criminal Appeals in Givens, 2020 CCA LEXIS
366, 2020 WL 6146572.

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Opinion of the Court

against Appellant in October. In November 2018, the conven-
ing authority referred all charges, including the original
charges and the additional charge of adultery.
In November 2018, Appellant was arraigned, where he
pleaded “not guilty” to all charges and specifications. Before
receiving his pleas, the military judge “advise[d Appellant]
that any motion to dismiss or grant other appropriate relief
should be made at this time.” The military judge then issued
a pretrial order requiring written motions to be submitted
prior to trial by December 4, 2018.
The day of the deadline, the defense raised no motions, but
did submit its witness list, identifying CPT CF as a witness
for sentencing.
On January 11, 2019, the military judge held a hearing on
all motions filed by the parties at that time. None of the mo-
tions filed by Appellant challenged or objected to the preferral
of charges based on defective preferral or accusatory unlawful
command influence.
However, two days prior to trial, on Sunday, February 24,
2019, Appellant filed a motion for appropriate relief, seeking
inter alia, dismissal of the charges and disqualification of the
trial counsel based on defective preferral and apparent un-
lawful command influence.
Appellant argued that this motion embodied a combina-
tion of two, separate but related, errors. On one front, the mo-
tion alleged the preferral was defective because CPT JE co-
erced CPT CF into preferring charges that CPT CF did not
believe were true, and of which CPT CF lacked personal
knowledge. Secondarily, the motion alleged that CPT JE’s act
of coercing CPT CF to prefer charges also constituted unlaw-
ful command influence.
During oral argument on the motion the following day, de-
fense counsel proffered that he had “just found [out] about
[CPT CF’s] knowledge . . . of this stuff on Friday.” The defense
presented to the military judge a time line of events which he
believed established the defective preferral issue, as well as
the unlawful command influence claim. The defense focused
on the following language from a sworn affidavit provided by
CPT CF as a basis to these claims:

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Opinion of the Court

When I first spoke to CPT [JE] about the charges
against [Appellant], I told him that I understood the
domestic violence charges but I want to deal with the
rest of the charges at my level. I told him that I did
not agree with the charges for BAH [Basic Allowance
for Housing] fraud, the false official statement, the
assault on the other Soldier, and the child endanger-
ment. . . . I told CPT [JE] that I did not agree with
the charges, and he told me that if I did not prefer
charges, someone else would. CPT [JE] said that this
was going to Court-Martial, this is a Court-Martial
offense. . . . I did not want someone else to tell [Ap-
pellant] about the charges, and I thought if someone
else was going to prefer charges anyway, I might as
well sign the charge sheet. . . . I decided that I had
to prefer charges or someone else would. Throughout
the experience with CPT [JE], I felt that [Appel-
lant’s] case was dealt with especially harsh [sic].
[Appellant] deserved punishment for the domestic
incident, however, not to this extent.
....
Last Friday, 22 February 2019, CPT [JE] called me
to discuss this case. He explained to me that when I
preferred charges I knew that I always knew I have
the option to take action or not take action. I told
him, “when I preferred charges, I did not feel that I
have any other option but prefer charges.” “If l had
an option, I would not have checked Court-Martial
for this case.” I do not feel that CPT [JE] ordered me
to prefer charges, but I did not feel that I had an op-
tion either.
No additional evidence was offered to address when the
defense knew or should have known about the unlawful com-
mand influence issue. Nor did the defense proffer how it came
to be aware of the issues with preferral and unlawful com-
mand influence.
The military judge then denied Appellant’s motion on pro-
cedural grounds, noting that the motion was filed two days
before trial and months after the filing deadline established
in the pretrial order. He explained: “Good cause does not exist
for filing this motion on the eve of trial.”

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Opinion of the Court

Law
Generally, any person subject to the UCMJ may prefer
charges, however, the accuser must state that the charges
“are true in fact to the best of his knowledge and belief.”
United States v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994) (in-
ternal quotation marks omitted) (quoting Article 30(a)(2),
UCMJ, 10 U.S.C. § 830(a)(2)). Under Rule for Courts-Martial
(R.C.M.) 307(b), through the accuser’s signature, preferral
signifies that a person has sworn an oath to assure that they
have either personal knowledge of or investigated the matters
set forth in the charges and specifications.
“A person who has been ordered or coerced into preferring
charges becomes an ‘accuser’ within the meaning of Article
1(9), UCMJ, 10 USC § 801(9).” Hamilton, 41 M.J. at 36. “An
accuser is disqualified from acting as a convening authority
in that case.” Id. (citing United States v. Jeter, 35 M.J. 442
(C.M.A. 1992)).
R.C.M. 905(b)(1) requires that any pretrial motion assert-
ing “[d]efenses or objections based on defects (other than ju-
risdictional defects) in the preferral, forwarding, or referral of
charges, or in the preliminary hearing,” “must be raised be-
fore a plea is entered.”
Thus, challenges alleging defects in the preferral of the
charges must be raised prior to entry of pleas. At the time of
trial in this case, R.C.M. 905(e) set forth the consequence for
not raising such challenges prior to entry of pleas. “Failure by
a party to raise defenses or objections or to make motions or
request which must be made before pleas are entered under
subsection (b) of this rule shall constitute waiver. The mili-
tary judge for good cause shown may grant relief from the
waiver.” R.C.M. 905(e) (2016 ed.).
In Hamilton, 41 M.J. 32, this Court examined the situa-
tion where, as in the case here, a claim of defective preferral
was based upon a coerced preferral, raising the specter of un-
lawful command influence. There, the Court established the
now long-standing proposition that “[i]f a commander is co-
erced into preferring charges that he does not believe are true,
the charges are treated as unsigned and unsworn.” Id. at 36
(citations omitted); see United States v. Miller, 33 M.J. 235
(C.M.A. 1991)). The Discussion section of R.C.M. 905(b)(1)

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Opinion of the Court

identifies “unsworn charges” as a “defect[]” under the rule.
Thus, the rule established by Hamilton and its progeny is
that claims of defective preferral based on allegations of un-
lawful command influence must be raised prior to entry of
pleas. Moreover, such claims are subject to waiver unless the
military judge relieves that party from the waiver after a
showing of good cause.
Unlawful command influence is generally reviewed as an
accusatory (preferral, forwarding, and referral of charges) or
adjudicative (interference with witnesses, judges, members,
and counsel) claim. United States v. Weasler, 43 M.J. 15, 17–
18 (C.A.A.F. 1995). It is therefore necessary, to determine
whether an allegation of unlawful command influence in a
given case pertains to the preferral of charges, forwarding of
charges, referral, trial, or post-trial review, in order to deter-
mine the applicable rules of law. R.C.M. 905. Appellant here
claims unlawful command influence in the context of the pre-
ferral of charges, therefore, he is asserting a claim of accu-
satory unlawful command influence.
This Court has previously required appellants to raise ac-
cusatory claims of unlawful command influence before pleas
are entered. Hamilton, 41 M.J. at 36; United States v. Richter,
51 M.J. 213, 224 (C.A.A.F. 1999). In United States v. Argo, we
reviewed an allegation of unlawful command influence affect-
ing the Article 32, UCMJ, investigation process as an objec-
tion covered by R.C.M. 905(b)(1), highlighting that motions or
objections based on defective investigation must be made be-
fore pleas. 46 M.J. 454, 459 (C.A.A.F. 1997).
Our case law reveals that claims of accusatory unlawful
command influence must be reviewed as pretrial defects, and
must be held to the deadline set out in R.C.M. 905(b). Hamil-
ton, 41 M.J. at 36; Richter, 51 M.J. at 224.
Standard of Review
We review whether an appellant has waived an issue, a
question of law, de novo. United States v. Ahern, 76 M.J. 194,
197 (C.A.A.F. 2017) (citing United States v. Rosenthal, 62
M.J. 261, 262 (C.A.A.F. 2005)).
We review a military judge’s determination as to whether
there was “good cause” shown for an abuse of discretion.

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Opinion of the Court

United States v. Jameson, 65 M.J. 160, 163 (C.A.A.F. 2007).
“The abuse of discretion standard is a strict one, calling for
more than a mere difference of opinion.” United States v.
McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000).
Discussion
Appellant contends the military judge erred in denying his
motion for appropriate relief based on the failure to raise a
timely objection for defective preferral. Appellant concedes
his defective preferral motion was untimely. Still, he argues
that the same claim, styled as unlawful command influence,
is subject to the ordinary deadline of adjournment under
R.C.M. 905(e)(2).
Alternatively, even if the unlawful command influence
motion was waived, Appellant asserts “good cause” has been
established, per R.C.M. 905(e), and the military judge abused
his discretion in ruling otherwise. Because the Government
argues that the defense waived these claims due to an un-
timely objection, we address this issue first.
A. Defective Preferral is Governed by
R.C.M. 905(b)(1) and Case Law
This Court has routinely found claims of defective prefer-
ral waived if not raised “at trial.” Hamilton, 41 M.J. at 37;
Richter, 51 M.J. at 223; United States v. Drayton, 45 M.J. 180,
182 (C.A.A.F. 1996). We stated previously that the failure to
object to a defective preferral waives the error. Hamilton, 41
M.J. at 36; see Frage v. Moriarty, 27 M.J. 341 (C.M.A. 1988);
United States v. Taylor, 15 C.M.A. 565, 36 C.M.R. 63 (1965);
United States v. May, 1 C.M.A. 174, 2 C.M.R. 80 (1952);
United States v. Miller, 31 M.J. 798, 801 (A.F.C.M.R. 1990).
In Drayton, we explained “the relevant facts were known
to appellant before trial. Appellant has not asserted that he
was deterred at trial from objecting to a coerced preferral or
recommendation. Accordingly, we hold that any alleged de-
fects based on coercion were waived.” 45 M.J. at 182.
Here, Appellant raised a motion seeking to dismiss the
case based on an alleged defective preferral, as well as seek-
ing to disqualify trial counsel for his unlawful influence over
preferral of the charges. This motion was raised before trial
began, but after Appellant had already entered his pleas.

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Opinion of the Court

On its face, the motion appears to be an attempt by the
defense to raise a claim of unlawful command influence as a
way to circumvent the untimely filing of the defective prefer-
ral motion. Still, even after Appellant conceded “the portion
of the defense motion related to defective preferral was un-
timely,” he believed his unlawful command influence claim
could still be properly raised, because it was raised “at trial.”
Here, Appellant unavailingly seizes on one sentence in Ham-
ilton. See 41 M.J. at 37 (claims of defective preferral are
waived if not raised “at trial”).
In Hamilton and the similar cases that followed, the ap-
pellants’ claims of defective preferral based on unlawful com-
mand influence were never initially raised during the trial at
all. Id. at 34 (raised for the first time before the Court of Mil-
itary Review); Richter, 51 M.J. at 223 (raised for the first time
on appeal); Drayton, 45 M.J. at 182 (raised for the first time
on appeal). The term “at trial” simply reflected the procedural
posture of the appellate claims in those cases. This under-
standing of the term best aligns with our reading of the
R.C.M. and our case law.
Thus, applying our understanding of the established prec-
edent on this issue, we find no error in the military judge’s
denial of Appellant’s motion based on its untimely status. Any
objections asserting a defect in the preferral of charges based
upon unlawful command influence needed to be raised prior
to the entry of pleas, per R.C.M. 905(b)(1). Appellant also does
not assert he was “deterred at trial from objecting to a coerced
preferral,” therefore, the alleged defects were waived. Dray-
ton, 45 M.J. at 182.
B. “Good Cause” Shown May Excuse Waiver
Although we conclude waiver applies to Appellant’s mo-
tion to dismiss because of an untimely filing, we must exam-
ine whether the military judge abused his discretion in not
finding “good cause” for Appellant’s delay in filing.
Under R.C.M. 905(e) (2016 ed.), and our case law, a
“military judge for good cause shown may grant relief from
the waiver.” 4 United States v. Hardy, 77 M.J. 438, 441

4 The President amended the language of R.C.M. 905(e) in Ex-
ecutive Order No. 13,825. See Exec. Order No. 13,825, 83 Fed. Reg.

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Opinion of the Court

(C.A.A.F. 2018); Jameson, 65 M.J. at 163; United States v.
Nickerson, 27 M.J. 30, 32 (C.M.A. 1988). In our review of
“good cause shown,” we have routinely analyzed this
exception to waiver as a burden upon the moving party.
Jameson, 65 M.J. at 162–63; Nickerson, 27 M.J. at 32
(“appellant failed to show good cause, namely that relief from
his earlier waiver was necessary”).
In Jameson, we concluded that good cause does not exist
when “the defense knew or could have known about the evi-
dence in question before the [relevant] deadlines.” 65 M.J. at
163. This includes instances where the defense had access to
evidence and witnesses before trial, but failed to find out rel-
evant information. Id. Although Jameson is distinguishable, 5
the case announces the applicable standard to the facts now
before us.
We conclude that the military judge did not abuse his
discretion. Appellant missed the deadline set out under
R.C.M 905(b)(1) and failed to establish “good cause” for the
delay in filing his motion. Appellant stated the delay in filing
came as a result of the defense only recently learning of
potential improper influence in the preferral of charges, but
could not establish why this information could not have been
pursued earlier.

9889, 9985 (Mar. 8, 2018) (effective Jan. 1, 2019). The amendment
specifies that a failure to raise an objection under R.C.M. 905(b)
“forfeits” the objection “absent an affirmative waiver.” Id. This
amendment, however, does not apply to the present case. Id.
5 Two distinguishing facts articulate the rationale behind the
ruling in Jameson. First, the military judge “fully probed defense
counsel’s reasons for not making a timely motion.” 65 M.J. at 163.
The military judge here conducted limited factfinding in establish-
ing a time line in which he determined “the facts upon which the
defective preferral and unlawful command influence portions of the
motion are based were discoverable by the defense beginning on 23
April 2018, the date of preferral.” Secondly, defense counsel in
Jameson waited until the government’s case-in-chief to raise a mo-
tion to suppress even though the defense “knew about the evidence
at issue.” Id. In the case before us, defense counsel submitted the
motion prior to trial and only days after learning of the relevant
evidence.

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Opinion of the Court

While Appellant acknowledged the factual basis for his
claims could have been learned prior to the entry of pleas, Ap-
pellant stated there was no reason to suspect that CPT JE
improperly influenced CPT CF.
When given the opportunity by the military judge, the de-
fense failed to address how it became aware of the unlawful
command influence issue or why it could not have been ex-
plored before the entry of pleas. CPT CF had been listed as a
witness for the defense for months by the time the motion was
filed, but for reasons indiscernible from the record, Appellant
did not seek to interview him at that time. Furthermore, Ap-
pellant styled his motion for relief in part as one regarding
defective preferral, and at that moment, would have been on
notice that good cause would be required to relieve him from
the waiver. Despite this, Appellant failed to carry his burden
to demonstrate to the military judge why good cause existed
to relieve him from the consequence of waiver. Therefore, we
are compelled to conclude the military judge did not abuse his
discretion in denying the motion.
Conclusion
We hold that the military judge did not err by denying Ap-
pellant’s motion on procedural grounds and there was no
abuse of discretion in ruling good cause was not established.
The decision of the United States Army Court of Criminal Ap-
peals is affirmed. 6

6 On October 19, 2021, Government appellate counsel moved to
supplement the record concerning his response to a question from
the bench during oral argument. On consideration by the Court, the
motion is granted.

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Chief Judge OHLSON, with whom Senior Judge EFFRON
joins, dissenting.
This case revolves around a straightforward question:
When must an accused raise a claim of accusatory unlawful
command influence (UCI) in order for that claim to be consid-
ered timely?
In the present case, the defense received evidence—after
the entry of pleas—that a serious breach of the prohibitions
against unlawful command influence had occurred at the ac-
cusatory stage of the proceedings. The defense received this
information shortly before the presentation of evidence on the
merits and promptly brought the evidence to the attention of
the military judge. However, the military judge declined to
address the merits of the motion, ruling that the defense fil-
ing was untimely.
The majority opinion concludes that the military judge did
not err. However, for the reasons set forth below, I conclude
that the military judge erred in two critical respects. First,
the ruling of the military judge did not take into account the
recognition in our case law of the importance of permitting an
accused to raise an accusatory UCI claim at any point before
the adjournment of an accused’s trial. Second, even assuming
that the filing did not meet the timing requirements of Rule
for Courts-Martial (R.C.M.) 905(b)(1), I conclude that the mil-
itary judge erred by failing to conduct an adequate inquiry
into the circumstances supporting the defense contention that
there was good cause to “grant relief from the waiver.” R.C.M.
905(e). 1
Because the majority holds to the contrary, I respectfully
dissent.
I. Background
The troubling facts of this case are not in dispute. While
Appellant’s court-martial was still ongoing, the defense sub-
mitted to the military judge a newly sworn statement made
by the company commander who had preferred the charges.

1 Because the charges in this case were referred before January
2019, the citations in this opinion are to the 2016 version of the
R.C.M. The 2019 R.C.M., however, are substantially similar, in rel-
evant part.
 United States v. Givens, No. 21-0086/AR
Chief Judge OHLSON, dissenting

The company commander said in the statement that: he “did
not agree with [some of] the charges” he preferred against Ap-
pellant; he believed Appellant “ha[d] not committed” one of
the charges he preferred; he was not presented with “any ev-
idence” supporting the charges at the time of preferral; he felt
that Appellant was being “dealt with especially harsh[ly]”; he
was “amazed that [the court-martial] was happening”; and
the only reason he preferred all of the charges was that the
trial counsel had led him to believe that he did not have “any
other option but [to] prefer charges. If I had an option, I would
not have checked Court-Martial for this case.” (Internal quo-
tation marks omitted.) In sum, the company commander as-
serted that he was coerced by the trial counsel into preferring
charges. And yet, upon reading this sworn statement by the
company commander, the military judge summarily ruled
that the defense motion was “untimely” without conducting a
meaningful inquiry on the record into the critical issue of
whether there was good cause under R.C.M. 905(e) to “grant
relief from the waiver.”
II. The Responsibilities of the Military Judge in Addressing
Unlawful Command Influence
The case law pertaining to unlawful command influence
is similarly not in dispute. During the past three-and-a-half
decades, this Court has proclaimed that unlawful command
influence is “the mortal enemy of military justice,” United
States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986), that it can
be “devastating” to the military justice system, United States
v. Stoneman, 57 M.J. 35, 42 (C.A.A.F. 2002) (internal
quotation marks omitted) (quoting United States v. Allen, 33
M.J. 209, 212 (C.M.A. 1991)), and that it goes to the very
heart of the “[]fairness” of court-martial proceedings, United
States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). “Indeed,”
as then-Chief Judge Robinson Everett noted in Thomas, “a
prime motivation for establishing [our Court] was to erect a
further bulwark against impermissible command influence.”
22 M.J. at 393.
In addition, our case law firmly establishes that “a pri-
mary duty of the military judge in a court-martial is to protect
against unlawful command influence.” United States v. Har-
vey, 64 M.J. 13, 18 (C.A.A.F. 2006) (citing Biagase, 50 M.J. at

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 United States v. Givens, No. 21-0086/AR
Chief Judge OHLSON, dissenting

152). Moreover, our Court “has repeatedly reaffirmed that the
military judge is the ‘last sentinel’ in the trial process to pro-
tect a court-martial from unlawful command influence.” Id. at
14 (citing United States v. Gore, 60 M.J. 178, 186 (C.A.A.F.
2004); Biagase, 50 M.J. at 152; United States v. Rivers, 49
M.J. 434, 443 (C.A.A.F. 1998)). Accordingly, the question be-
fore us is whether the military judge in the instant case ful-
filled these essential responsibilities.
Despite the egregious facts brought to the attention of the
military judge and despite this clear-cut case law, the major-
ity opinion treats this situation as if it were some tame proce-
dural defect, such as when a functionary misspells a name in
a forwarding document. I respectfully disagree. Unlawful
command influence is a different beast entirely, “red in tooth
and claw.”2
In viewing flagrant evidence of UCI as a mere procedural
defect, the majority opinion relies on the provisions of R.C.M.
905(b)(1), which state that “[d]efenses or objections based on
defects (other than jurisdictional defects) in the preferral, for-
warding, or referral of charges, or in the preliminary hearing”
“must be raised before a plea is entered . . . .” (Emphasis
added.) However, a “defect” is typically considered to be a
mere fault, flaw, shortcoming, or imperfection. Merriam-Web-
ster’s Unabridged Online Dictionary, https://unabridged.mer-
riam-webster.com/unabridged/defect (last visited Mar. 17,
2022). Unlawful command influence is far more pernicious
than that. Moreover, it does not resemble the examples of
“nonjurisdictional defects” set forth in the Discussion section
applicable to R.C.M. 905(b), which refers to matters such as
“unsworn charges, [an] inadequate Article 32 preliminary
hearing, and inadequate pretrial advice.” R.C.M. 905(b)(1)
Discussion. Accordingly, R.C.M. 905(b)(1)’s invocation of the
words “defects . . . in the preferral” is a remarkably thin reed
upon which to hang the weighty issue of waiver as it pertains
to a fundamental subversion of the military justice system.
The majority, in support of their reliance on R.C.M.
905(b)(1), points to the case of United States v. Hamilton, 41
M.J. 32 (C.M.A. 1994), stating: “[T]he rule established by

2 Alfred, Lord Tennyson, In Memoriam A.H.H. canto 56 (1850).

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Chief Judge OHLSON, dissenting

Hamilton and its progeny is that claims of defective preferral
based on allegations of unlawful command influence must be
raised prior to entry of pleas.” United States v. Givens, __ M.J.
__, __ (6) (C.A.A.F. 2022).
I respectfully disagree. The Hamilton Court did not re-
quire UCI motions to be raised before the entry of pleas. In
Hamilton, this Court stated: “We . . . hold that any defects in
the preferral or forwarding of charges were waived, since ap-
pellant did not raise them at trial.” 41 M.J. at 37 (emphasis
added). Thus, the holding in the Hamilton case indicates that
accusatory UCI must be raised at trial, meaning at any time
prior to the adjournment of the court-martial.
In that regard, it is noteworthy that just prior to deciding
Hamilton, this Court held that a claim of unlawful command
influence was not waived for purposes of the appeal even
though appellant “fail[ed] to raise it at his court-martial”
altogether. United States v. Johnston, 39 M.J. 242, 243
(C.M.A. 1994).
Further, none of our cases subsequent to Hamilton estab-
lishes a requirement to present motions alleging accusatory
UCI prior to the entry of pleas. On the contrary, the case law
following our decision in Hamilton did not adopt the position
staked out in the passage cited by the majority. In United
States v. Brown, for example, we held as follows: “Failure to
raise the issue of command influence as to the accusatorial
process, as in this case at the trial, waives the issue.” 45 M.J.
389, 399 (C.A.A.F. 1996) (emphasis added). And in United
States v. Richter, a case where the appellant asserted that his
commander was coerced by the legal office into preferring
charges, this Court held that “[d]efects in preferring and for-
warding charges are waived if not raised at trial, unless the
failure to raise the issue is itself the result of unlawful com-
mand influence.” 51 M.J. 213, 224 (C.A.A.F. 1999) (emphasis
added). And the sole precedent this Court cited in support of
this proposition was none other than Hamilton.
The line being drawn in Brown and Richter—as reflected
by the holding in Hamilton—that an appellant must raise an
accusatory UCI claim before the trial is completed rather
than wait to raise the claim for the first time on appeal—re-

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Chief Judge OHLSON, dissenting

flects a concern that “the accused would unfairly benefit be-
cause [a] remand [on appeal] may be a number of years after
the trial, when the witnesses and victims have moved or their
memor[ies] ha[ve] faded.” United States v. Upshaw, 49 M.J.
111, 114 (C.A.A.F. 1998) (Crawford, J. concurring). Drawing
the line any earlier in the adjudicatory process, however, im-
properly exalts a rigid view of orderliness over the far more
important interest of having this Court continue to stand as
a “bulwark” as we vindicate each servicemember’s right to a
court-martial untainted by the stain of unlawful command in-
fluence. Thomas, 22 M.J. at 393.
For the foregoing reasons, we should view accusatory UCI
motions as raising more than mere “defects” under R.C.M
905(b)(1). Instead, we should consider accusatory UCI under
the rule that reflects the substance of the motion that was
presented by the defense in this case: that is, R.C.M. 907(a),
which governs motions to dismiss that are “capable of resolu-
tion without trial of the general issue of guilt.”
Therefore, based on the text and structure of the R.C.M.,
the applicable case law of this Court, and the inherent cor-
rupting effect of unlawful command influence, I conclude that
a claim of accusatory UCI raised at any time prior to the ad-
journment of a court-martial must be considered timely. Ac-
cordingly, under the facts of this case, Appellant’s motion was
timely and the military judge was required to adjudicate it.
III. The Responsibilities of the Military Judge in Address-
ing Good Cause to Grant Relief from the Waiver under
R.C.M. 905(e) in the Context of Accusatory UCI
Even if I were to adopt the majority’s view that R.C.M.
905(b)(1) applies here, I would conclude that the military
judge abused his discretion by failing to conduct a meaningful
inquiry into whether Appellant showed good cause to raise an
untimely motion. Specifically, the military judge had the re-
sponsibility to consider the motion under R.C.M. 905(e),
which provides that “[t]he military judge for good cause
shown may grant relief from the waiver” that would otherwise
be effected by a failure to timely make the motion.

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Chief Judge OHLSON, dissenting

In the instant case, the defense submitted a motion during
trial that requested dismissal of the charges based upon evi-
dence of accusatory UCI, and requested permission to file the
motion upon a showing of good cause based on newly discov-
ered evidence. The motion presented the military judge with
a startling sworn statement by the company commander in
which the company commander stated that he had been co-
erced into preferring charges against the accused.
The military judge nonetheless summarily rejected the de-
fense motion. After setting forth the time lines that had been
established for filing motions and concluding that the motion
was “untimely,” the military judge merely added the following
cursory observations related to the issue of good cause: “[T]he
facts upon which the defective preferral and unlawful com-
mand influence portions of the motion are based were discov-
erable by the defense beginning on 23 April 2018, the date of
preferral. Good cause does not exist for filing this motion on
the eve of trial.”
As can be seen, the military judge failed to substantively
address the prima facie showing of good cause presented by
the defense. This was true despite the fact that the defense
counsel, as officers of the court, twice informed the military
judge that they had learned of the impropriety in the referral
process just days before the trial on the merits was set to
begin. Specifically, in an email to the military judge on
February 24, 2019, defense counsel sought leave to file an
amended motion “for good cause” based on “new evidence
discovered on Friday afternoon that relates to the Motion.”
And defense counsel, during argument on the motion,
reiterated the fact that they had only recently been made
aware of the unlawful command influence issue. The
Government did not address good cause in its argument on
the motion, and the military judge did not follow up on the
defense’s assertion, did not ask any pertinent questions of
either side, and did not address good cause in any other way
during the hearing on the motion.
Simply put, the defense presented a prima facie showing
of good cause by alerting the military judge to their recent
discovery of the pertinent information. And the defense had
no reason to believe this showing was inadequate—and thus

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 United States v. Givens, No. 21-0086/AR
Chief Judge OHLSON, dissenting

had no reason to expand on its proffer—because the Govern-
ment had not refuted this point and the military judge had
neither explored the issue nor indicated in any way that the
defense had not met its burden.
The military judge denied the motion on the basis that the
facts relied on by the defense were “discoverable” since the
date of preferral. If that standard were established as a re-
quired condition for establishing good cause, it would impose
on defense counsel an obligation to engage in discovery
throughout an accused’s command in order to ascertain
whether there had been any impropriety at the accusatory
stage of a court-martial, even if the defense had no basis for
making such an inquiry.
I also note that on July 13, 2018—more than four months
before the entry of pleas—defense counsel specifically asked
the Government to disclose any evidence of unlawful com-
mand influence, to which the Government responded: “[N]o
such evidence is known to exist.” Appellant’s reliance on that
representation was reasonable because all evidence of unlaw-
ful command influence concerned the behavior of government
actors. And as we have held previously, “there [is] good cause
[shown] when the government ‘sandbag[s]’ the defense.”
United States v. Jameson, 65 M.J. 160, 163 (C.A.A.F. 2007)
(third alteration in original) (quoting United States v. Coffin,
25 M.J. 32, 34 n.3 (C.M.A. 1987)). That is, when defense coun-
sel reasonably rely on representations by the government in
deciding to not file a motion, and the government later acts
inconsistent with those representations, good cause can exist
to “grant relief from the waiver.” R.C.M. 905(e); see Jameson,
65 M.J. at 163.
Per Jameson, the Government may not have it both ways.
Appellant’s failure to file a timely motion was directly trace-
able to representations made by the Government, and thus
even if the motion should have been filed before pleas, the
military judge erred in failing to address this critical evidence
as to whether there was good cause to “grant relief from the
waiver.” R.C.M. 905(e).
The majority opinion suggests that the defense is some-
how at fault because the defense had listed the company com-
mander “as a witness for the defense for months by the time

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 United States v. Givens, No. 21-0086/AR
Chief Judge OHLSON, dissenting

the motion was filed, but for reasons indiscernible from the
record, Appellant did not seek to interview him at that time.”
Givens, __ M.J. at __ (10). 3 But two things are clear from the
record. First, the company commander was listed as a sen-
tencing witness, not a witness on motions or on the merits.
And second, as noted above, the Government had expressly
assured the defense that, with respect to UCI, “[N]o such ev-
idence is known to exist.” Under these circumstances, the tim-
ing of the defense interview—a factor not mentioned by the
military judge—does not justify the military judge’s rejection
of the defense motion.
IV. Conclusion
I conclude that the military judge erred by not permitting
Appellant to submit an accusatory UCI motion at any time
during trial. I further conclude that, even if there is a require-
ment to submit an accusatory UCI motion prior to pleas un-
der R.C.M. 905(b)(1), the military judge erred in failing to ap-
propriately address Appellant’s prima facie showing of good
cause under R.C.M. 905(e) to “grant relief from the waiver.”
Because the military judge erred by summarily disposing
of Appellant’s UCI motion as untimely, he did not explore the
merits of Appellant’s UCI claim. As a result, the record is not
sufficiently developed for this Court to decide that issue, to
include the potential harmlessness of the military judge’s ac-
tion. Accordingly, I would reverse the judgment of the United
States Army Court of Criminal Appeals, remand for consider-
ation of Appellant’s UCI claim, and authorize a DuBay 4 hear-
ing for further factfinding. Accordingly, I respectfully dissent.

3 The majority places responsibility for the lack of an appellate
record on the defense despite the Government specifically denying
knowledge of any evidence of UCI and the military judge providing
little justification for a sua sponte ruling disregarding prima facie
evidence of good cause. It is noteworthy that appellate defense
counsel was likely foreclosed from answering why the record is de
minimis in this case. See United States v. Jessie, 79 M.J. 437, 445
(C.A.A.F. 2020) (“[T]he text of Article 66(c), UCMJ, [10 U.S.C.
§ 866(c) (2012),] does not permit the CCAs to consider matters that
are outside the entire record.”).
4 United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).

8