United States v. Benedict

Chief Judge CRAWFORD

delivered the opinion of the Court.

On September 4-6, 1996, pursuant to his pleas, appellant was convicted of making false official statements and larceny, between July 1993 and February 1996, in violation of Articles 107 and 121, Uniform Code of Military Justice, 10 USC §§ 907 and 921, respectively. On February 14, 1997, the convening authority approved the sentence imposed by officer and enlisted members of 1 year’s confinement, a fine of $5,000, and reduction to pay grade E-4. We granted review of the following issues:

I. WHETHER THIS CASE SHOULD BE REMANDED TO THE COURT OF CRIMINAL APPEALS FOR A DETERMINATION AS TO: (A) WHETHER IT WAS ERROR TO ADMINISTRATIVELY REDUCE APPELLANT 14 DAYS AFTER HE ENTERED CONFINE*452MENT; AND (B) THE IMPACT, IF ANY, OF UNITED STATES V GORSKI, 47 MJ 370 (1997) UPON APPELLANT’S RETIRED PAY.
II. WHETHER THE CONVENING AUTHORITY FAILED TO SELECT THE COURT-MARTIAL MEMBERS IN ACCORDANCE WITH ARTICLE 25, UCMJ, 10 USC § 825 BECAUSE HE WAS PRESENTED WITH AN IMPERMISSIBLE FAIT ACCOMPLI AS TO THE COMPOSITION OF THE PANEL. SEE UNITED STATES V. MARSH, 21 MJ 445 (CMA1986).

Based on the Government’s concession, we order a hearing under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), to determine whether appellant was reduced in grade 14 days after entering confinement and (2) whether automatic forfeitures were assessed against appellant’s retirement pay. Final Government Brief at 9-10. Such hearing should be held in an expeditious manner. As to Issue II we hold that the convening authority selected the court members in accordance with Article 25.

FACTS — ISSUE II

Pursuant to a semi-annual solicitation of court members, Commander (CDR) James E. Litsinger, Deputy of the Administration Division, 13th Coast Guard District, received approximately 30 nominees to serve on a court panel to sit for 6 months. The solicitation for the member pool is done whether or not a court-martial is scheduled. He then culled out those officers who were near retirement, pending transfer orders, or on critical temporary duty. Because of the request for enlisted members, he also sent out more questionnaires for potential enlisted members. However, because the pool was small, Captain (CAPT) Sinclair, the Chief of Staff of the District, encouraged the command to send in other nominees for a much larger pool. None of the questionnaires were removed. Of the nominees submitted, none were from CDR Litsinger’s district. He forwarded the remaining nominations to “the convening authority.” However, he admitted that rather than sending those directly to the convening authority, he sent them through CAPT Sinclair. In his note, CDR Litsinger asked the Chief of Staff to “select” 9 prospective members. CDR Litsinger testified that the convening authority personally selected the members. CDR Litsinger testified that sometime later a secretary in his office received a list of members from “the front office” with a note that said, “These folks have been selected.” She then prepared a convening order based on that list.

The convening authority specifically told CDR Litsinger and the Staff Judge Advocate (SJA), Captain Judith Hammond, that he selected the court members. To “avoid bringing the convening authority in,” the judge played back CDR Litsinger’s testimony that the admiral personally selected the members. CAPT Sinclair testified that he received a package of member questionnaires from the administrative officer. Several prospective members had been eliminated because of service on a prior court-marital. CAPT Sinclair then testified as follows:

I screened through the names, developed a list of — I don’t recall how many, might have been six or so, for nomination for this court. I screened the names to look for those who I thought would be available, we didn’t know when this court would be convened, so we didn’t know when — what exact window of opportunity we were aiming at. So, I looked for those who were generally available. Those who seemed to meet the criteria of not having direct knowledge of the case, the best I could determine. I didn’t know who all the witnesses might be, so we just took what appeared to be those who wouldn’t have direct knowledge. From that list I gave the secretary the shorter list and asked her to have the convening order prepared for recommendation to the District Commander.
Q [TC]: Do you recall when that recommended convening order came back to the Admiral’s office or if it ever did?
A: Came back to be presented to him?
Q: Yes.
A: No. It was a few days later, I guess.
*453Q: Do you recall a meeting when that recommended convening order was presented to the Admiral?
A: I checked the typing of the convening order, it appeared to be correct. It was all the same names that I had checked off on the handwritten list, and I presented that to the District Commander and said “Here’s who I recommend you consider for the upcoming court.”
Q: Prior to that presentation, did you have any discussion with the Admiral regarding the composition or the recommended composition?
A: None at all. No.
Q: Do you know whether or not the members’ questionnaires were made available to the Admiral?
A: I do not recall. No, I don’t recall. They were in a manila folder but I don’t remember if I sent them with the convening order or not.
Q: Would you have substituted anyone if the Admiral had asked to have anyone substituted?
A: It didn’t come up, so I don’t — I don’t think I would have without discussing why. If there was any reason why. As it worked out, subsequently, some people on that court did have other conflicts and I think at least one may have become a witness and had to be eliminated. So there was a later process to generate additional members.
Q: That was a — there was some other action taken by a different Admiral, I believe.
A: Pardon?
Q: Admiral Spade actually did that amendment later on?
A: Yes. When — I think we eliminated maybe four, for various reasons. Once the date had been set and we knew of specific conflicts and had to eliminate one or two people for that, I think at least one became a witness and had to be eliminated. So then we went through the same process, essentially, to generate additional members,
Q: Captain, you testified that there was an amendment to this convening order at some later time. Do you know whether or not Admiral Spade was provided with the members’ questionnaires in conjunction with that selection and relief of officers in that amendment?
A: As with the first selection, there was a folder with questionnaires in it, but I don’t recall if that went in with the— actually, I wouldn’t have knowledge of whether that folder went in with the convening order that I had drafted for his consideration. Because it was routed through.
Q: What is your [sic] decision -with respect to the first convening order, was it your decision about the composition of the panel or was it the Admiral’s decision?
A: To my impression it was the Admiral’s decision.
Q: If the Admiral had wanted other members on that panel, would you have complied with his desires?
A: I would have to hear his reasons for such, but I made him recommendations and I felt they would be good enough recommendations that I had the convening order typed, not as a draft but as a final, and sent it in for his consideration. It would have been easy for him to have a change.
Q: It would have been easy for him to have a change?
A: Certainly.. He would have just scratched out-or whatever if he had members on there he thought I was inappropriately selecting.
Q: What — In your understanding, who was the final determiner of the members of this court?
A: My understanding, my feeling, was he made the decision.
*454H* sfc
Q [DC]: Is it a fair statement for me to say, Captain, that this was a duty that is one that is typical of one that is delegated to you as the chief of staff on behalf of the Admiral? To do these functions?
A: The administrative review and have developed a list? That’s what chief of staff does, yes.
Q: At the time the Admiral signed the original convening order, if I understood your testimony for that, Captain Hammond’s doesn’t matter; there were no changes made whatsoever?
A: At the time he signed the original convening order, there were no changes.
Q: The only changes were at a later date there were amendments made to add or-delete people because of change of circumstances?
A: Correct.

CAPT Hammond testified that she was present at a meeting in Admiral (ADM) Lockwood’s1 office on April 16, 1996, when the convening authority was presented with a package including the proposed convening order and pretrial investigation. She did not know whether the questionnaires were included in the package, but testified that it was the normal procedure for those items to be included. The Admiral went “through the package,” but did not make any comments about any particular member and did not add or delete any names on the list. CAPT Hammond stated her “conclusion” that the convening authority had made a decision as to the composition of the court-martial when he signed the convening order. Right after signing the order, the convening authority could have changed any of the members. On cross-examination CAPT Hammond testified that the convening order had been prepared prior to the meeting and submitted as part of the investigation.

The judge found:

I find that the convening authority did personally select the court members. In the case of the original convening order, he said so, and there is nothing about the process followed — in which the Chief of Staff submitted his written recommendation of the members to be named by the convening authority, who then personally signed the convening order — to suggest impropriety for either that convening order or the amendment.... In short, the presumption of regularity is not confronted with any evidence at all that would provide a basis for a finding that this court was not properly convened.

DISCUSSION — ISSUE II

The issue is this case is whether the convening authority personally detailed the court members pursuant to Article 25(d)(2). While the convening authority did not testify, the military judge found that the convening authority personally selected the members. App. Ex. LXIX. This Court is bound by the judge’s finding of fact unless it is clearly erroneous. See, e.g., United States v. Burris, 21 MJ 140, 144 (CMA 1985). Reliance upon staff work does not undermine the findings in this case. While the judge used the term “presumption of regularity” to reach these findings, the term is used in the sense of a permissive inference that might be drawn from the evidence presented. “Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of [a] ... fact — from the existence of one or more ‘evidentiary’ or ‘basic’ facts.” County Court of Ulster County, New York v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

The testimony presented was that the convening authority personally selected the nine prospective members set forth by the Chief of Staff. He then personally signed the order later. Other orders amending the original orders were personally signed by the convening authority. These findings are not *455undermined by the fact that the convening authority selected the nine perspective members put forth in an order prepared by the Chief of Staff.

This Court has held in the past that the “convening authority may rely on his [or her] staff to nominate court members.” United States v. Marsh, 21 MJ 445, 449 (CMA 1986); United States v. Kemp, 22 USCMA 152, 46 CMR 152 (1973). As this Court stated in Kemp, 22 USCMA at 155, 46 CMR at 155:

[W]e have recognized that the convening authority ... must have assistance in the preparation of a panel from which to choose those members. In order to carry out his function under Article 25, he must necessarily rely on his staff or subordinate commanders for the compilation of some eligible names.

The Court in Kemp upheld the selection of members from a list compiled by the Office of the Assistant Chief of Staff for Personnel. Likewise in Marsh the Court upheld Lieutenant General Becton’s selection of the members from a slate recommended by the staff judge advocate on the day of the trial. 21 MJ at 448^49. All the witnesses in the present case testified that it was the convening authority’s decision that resulted in the selection of the members. At the time of the selection, ADM Lockwood was asked by the SJA, in the presence of CDR Litsinger, “Admiral, did you select these members?” The convening authority replied, ‘Tes, I did.” This testimony and the convening authority’s personal signature on the convening order support the finding by the military judge.

The decision of the United States Coast Guard Court of Criminal Appeals is set aside. The record of trial is returned to the General Counsel for the Department of Transportation for action not inconsistent with this opinion.

. The original convening authority. It appears that Admiral Lockwood departed in a normal change of duty and was succeeded in command by Admiral Spade, who signed the amending orders and referred the additional charges to trial.