United States v. Ashby

UNITED STATES, Appellee

v.

Richard J. ASHBY, Captain
U.S. Marine Corps, Appellant

No. 08-0770

Crim. App. No. 200000250

United States Court of Appeals for the Armed Forces

Argued June 24, 2009

Decided August 31, 2009

ERDMANN, J., delivered the opinion of the court, in which
GOODWIN, J., and COX, and GIERKE, S.JJ., joined. STUCKY, J.,
filed a separate concurring opinion. EFFRON, C.J., and BAKER
and RYAN, JJ., did not participate.

Counsel

For Appellant: Lieutenant Dillon J. Ambrose, JAGC, USN
(argued); Lieutenant Kathleen L. Kadlec, JAGC, USN (on brief).

For Appellee: Lieutenant Commander Paul D. Bunge, JAGC, USN
(argued); Colonel Louis J. Puleo, USMC, and Brian K. Keller,
Esq. (on brief).

Military Judge: A. W. Keller

This opinion is subject to revision before final publication.
United States v. Ashby, No. 08-0770/MC

Judge ERDMANN delivered the opinion of the court.1

Appellant, Captain (Capt.) Richard J. Ashby, United States

Marine Corps Reserve, was the pilot of an EA-6B Prowler aircraft

conducting a training mission in the Italian Alps on February 3,

1998. The Prowler’s crew consisted of Ashby, Capt. Joseph P.

Schweitzer, who was the navigator for this mission and Ashby’s

co-accused, and two additional electronic countermeasures

officers. Late in the mission the aircraft was flying at low-

levels and struck weight-bearing cables of the Aple Cermis cable

car system. As a result, a descending cable car carrying twenty

individuals from various nations fell over 300 feet to the

ground. All twenty passengers in the cable car were killed.

Despite the damages that were inflicted upon the aircraft, Ashby

piloted it to a successful emergency landing at the North

Atlantic Treaty Organization (NATO) air base in Aviano, Italy.

Ashby ultimately faced two general courts-martial. At the

first court-martial he was acquitted by members of all charged

offenses including dereliction of duty, negligently suffering

1
Chief Judge Andrew S. Effron, Judge James E. Baker, and Judge
Margaret A. Ryan recused themselves from this case and did not
participate in this opinion. Judge Joseph R. Goodwin, Chief
Judge of the United States District Court for the Southern
District of West Virginia, sat by designation, pursuant to
Article 142(f), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 942(f) (2006). Senior Judge Walter T. Cox III, and
Senior Judge H. F. “Sparky” Gierke participated in this case
pursuant to Article 142(e)(i)(A)(iii), UCMJ, 10 U.S.C. §
942(e)(1)(A)(iii) (2006).

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military property to be damaged, recklessly damaging nonmilitary

property, involuntary manslaughter, and negligent homicide.

After the original charges had been referred, but before trial,

it was discovered that a videotape taken during the flight had

been concealed and eventually destroyed. A separate charge

alleging two violations of Article 133, UCMJ, 10 U.S.C. § 933

(2000), conduct unbecoming an officer and a gentleman, was

preferred. The convening authority directed that the Article

133, UCMJ, charge be tried in conjunction with the original

charge. At his initial trial, however, Ashby refused to consent

to the joinder of the Article 133, UCMJ, charge and it was

withdrawn by the convening authority. The Article 133, UCMJ,

charge was subsequently referred to a separate court-martial.

At his second court-martial Ashby was convicted by members

of two specifications of conduct unbecoming an officer and a

gentleman in violation of Article 133, UCMJ, for obstruction of

justice and conspiring to obstruct justice. He was sentenced to

six months of confinement, forfeiture of all pay and allowances,

and dismissal from the service. The convening authority

approved the sentence and, after remand2 and a new staff judge

advocate (SJA) recommendation and action, the United States

Navy-Marine Corps Court of Criminal Appeals affirmed the

2
United States v. Ashby, No. NMCCA 200000250, 2007 CCA LEXIS
235, 2007 WL 1893626 (N-M. Ct. Crim. App. June 27, 2007).

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United States v. Ashby, No. 08-0770/MC

findings and sentence. United States v. Ashby, No. NMCCA

200000250, slip op. at 4, (N-M. Ct. Crim. App. June 17, 2008)

(per curiam). We granted review of all nine issues submitted by

Ashby to this court. Following a careful review of the asserted

issues, we affirm the Court of Criminal Appeals.

BACKGROUND

The circumstances underlying the two Article 133, UCMJ,

offenses commenced after Ashby had successfully made the

emergency landing at the NATO airbase in Aviano, Italy. The

pertinent facts were summarized as follows by the Court of

Criminal Appeals in its first opinion in this case:

The evidence at trial was largely undisputed
as to what took place immediately before and
after this tragic aviation disaster. Capt
Schweitzer borrowed the appellant’s video camera
for the mishap flight. It was to be his last
flying mission prior to leaving active duty, and
he desired to have a remembrance that would
document for friends and family what he did as a
naval flight officer. Record at 928; 1272-74.
As Capt Schweitzer explained:

I asked [Capt Ashby] over the weekend
if I could borrow [the video camera].
Basically I wanted to take some low
level -- not low level, but footage of
basically how we were flying. It was
the last week we were going to be
there. I was getting out in June, and
I wanted to have something to have so I
could show my friends, my kids, and
say, hey, this is what your dad
did. . . .

Id. at 928. Before the flight, Capt Schweitzer
purchased a pack of two blank tapes. With the

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United States v. Ashby, No. 08-0770/MC

appellant’s assistance, he loaded one of the tapes
during the flight and shot video footage during
three separate legs of their six-legged mission.
Record at 931-32. Capt Schweitzer claimed at trial
that the camera was not in use at the time of the
mishap, which occurred on the last leg of the
mission. Id. at 932, 980.

After the cable strike, the crew was well
aware that their aircraft was seriously damaged and
that, under the best circumstances, an emergency
landing at the NATO air base in Aviano would be
required. They also feared they might have to
eject from the aircraft. After successfully
executing an arrested landing at the Aviano air
base, the two aft crewmembers immediately executed
an emergency egress from the aircraft in accordance
with standard mishap protocol. Before exiting the
aircraft, Capt Raney, who was in the aft cockpit,
overheard someone he believed was the appellant
asking “Is it blank?” Id. at 1173; 1287-88. The
appellant and Capt Schweitzer, did not egress the
aircraft, but instead elected to remain in the
forward cockpit discussing what to do with the
recorded videotape.

Knowing that their aircraft would be
immediately impounded and inventoried due to the
mishap, and seeking not to have the recorded
videotape “become an issue” during the
investigation they knew was forthcoming, Capt
Schweitzer ultimately told the appellant, “Let’s
take the tape.” Record at 935, 1293, 1295;
Prosecution Exhibit 2 at 1. Though both were
uncertain of everything depicted on the videotape,
Capt Schweitzer was aware that the tape, at a
minimum, showed the mishap aircraft executing a
flaperon roll [n5] during a ridgeline crossing on
the first leg of the flight, and, in a separate
segment, contained a scene of him smiling into the
video camera while holding it in the air and
pointing it back at himself. Record at 938, 939.
Capt Schweitzer handed the appellant the video
camera, and the appellant removed the recorded tape
and substituted in its place a new and unused tape.
Id. at 935, 1294; PE 2 at 1-2. The appellant then
placed the recorded tape in his flight suit pocket

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United States v. Ashby, No. 08-0770/MC

and exited the aircraft, leaving behind the video
camera loaded with the unrecorded tape, along with
the camera’s carrying bag. Record at 936, 1294; PE
2 at 2. The recorded videotape remained in the
appellant’s possession during the next few days (4
to 6 February 1998), during which he and the other
crewmembers learned that 20 people had died as a
result of their flight mishap, that the Italian
government had initiated a criminal investigation
into the matter, that Italian and military defense
counsel had been hired/detailed to represent the
crewmembers, and that a “Command Investigation
Board” (CIB) [n6] had been convened by the Marine
Corps to look into the facts and circumstances
concerning their flight.

[FOOTNOTES]

[n]5 A flaperon roll is a 360-degree twisting
maneuver about the long axis of the aircraft, often
performed during ridgeline crossings.

[n]6 A CIB is one of several authorized methods
specified in the Manual of the Judge Advocate
General for investigating significant operational
or training mishaps that involve loss of life
and/or significant property damage. See § 0208,
Manual of the Judge Advocate General (JAGMAN), JAG
Instruction 5800.7D (15 March 2004). At the time
of this incident, the CIB procedures and guidance
were contained in § 0209 of the JAGMAN, JAG
Instruction 5800.7C (03 October 1990).

[______________]

Three to four days after the mishap (on or about
07 February 1998) the appellant was walking from
the mess hall with Capt Schweitzer and Capt
Seagraves. When Capt Schweitzer described the
recorded videotape to Capt Seagraves and asked
his opinion as to what they should do with it,
Seagraves responded, “I would get rid of it” or
words to that effect. Record at 937. This
statement was made in the appellant’s presence.
Later, fully aware that the videotape contained
footage of his inverted ridgeline crossing and
other segments of the mishap flight, and worried

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United States v. Ashby, No. 08-0770/MC

that such would be “misinterpreted” by
investigators, the appellant gave the videotape
to Capt Schweitzer, who subsequently destroyed it
by throwing it into a bonfire. Id. at 938-40,
950, 1299. The appellant was advised of the
tape’s destruction by Capt Schweitzer shortly
thereafter. Id. at 950. The existence and
destruction of this videotape only came to the
attention of military investigators in August
1998, once Capt Seagraves received testimonial
immunity and elected to disclose “the truth about
everything.” Id.

Ashby, 2007 CCA LEXIS 235, at *9-*13, 2007 WL 1893626, at *2-*3

(footnote omitted).

The circumstances surrounding the removal, concealment and

eventual destruction of the videotape resulted in two

specifications alleging conduct unbecoming an officer and a

gentleman under Article 133, UCMJ. The first specification

alleged that Ashby engaged in conduct unbecoming an officer and

a gentleman by wrongfully conspiring with Schweitzer to obstruct

justice by endeavoring to impede an investigation. The second

specification alleged that Ashby engaged in conduct unbecoming

an officer and a gentleman by wrongfully endeavoring to impede

an investigation by secreting and/or destroying evidence.

Additional facts will be set forth in our discussion of the

individual issues as necessary.

DISCUSSION

I.

WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE
EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A

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United States v. Ashby, No. 08-0770/MC

CONVICTION UNDER ARTICLE 133, UNIFORM CODE OF MILITARY
JUSTICE (UCMJ), FOR OBSTRUCTION OF JUSTICE OR
CONSPIRACY TO OBSTRUCT JUSTICE.

In reviewing for the legal sufficiency of evidence, we take

the facts in the light most favorable to the Government and ask

whether those facts would permit a reasonable factfinder to find

all the elements of the charged offenses beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United

States v. Turner, 25 M.J. 324, 324-25 (C.M.A. 1987). We review

questions of legal sufficiency de novo. United States v.

Chatfield, 67 M.J. 432, 441 (C.A.A.F. 2009).

The Court of Criminal Appeals determined that the direct

and circumstantial evidence supported findings that (1) Ashby

had reason to believe that there was or would be a criminal

investigation or proceeding following the mishap, and (2) Ashby

acted with the specific intent to obstruct the due

administration of justice.3

3
In support of these conclusions the lower court noted the
following: (1) Ashby’s statements to the Supervisor of Flight
at Aviano Air Base indicated that Ashby was aware of what he had
hit, where he had hit it, and that serious concerns would be
raised regarding the manner in which the flight was conducted;
(2) Ashby and Schweitzer remained in the cockpit immediately
after landing to discuss the contents of the videotape and what
to do with it, while their fellow crewmembers immediately exited
the aircraft pursuant to protocol; (3) Ashby and Schweitzer
substituted a blank tape in the camera, left the camera in the
aircraft, and took the recorded tape with them; (4) Ashby
testified during his first court-martial that the reason they
replaced the recorded tape with a blank one was because they
knew that they would be subject to an AMB [Aircraft Mishap

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United States v. Ashby, No. 08-0770/MC

Before this court Ashby argues that the elements of

obstruction of justice were not met by the evidence presented by

the Government. Specifically, he asserts that a criminal

proceeding was not reasonably foreseeable when he removed the

videotape from the aircraft, and at worst, he subjectively

believed that an administrative investigation might occur.

Ashby also contends that there was insufficient evidence that he

formed the specific intent to impede a criminal proceeding. He

further argues that the evidence did not sufficiently establish

an agreement between himself and Schweitzer to obstruct justice,

where he “merely acceded to authority when he relinquished the

videotape,” and did not believe that the tape would be evidence

in a criminal proceeding.

The Government responds that given the nature of the mishap

and the actions of the two coconspirators during the charged

time period, there was sufficient evidence supporting both of

Board] and would have to answer some questions; (5) Ashby
learned on February 4, 1998, that he was under investigation by
the Italian authorities and realized at that time that some
other investigation may be initiated; (6) Schweitzer lacked
candor with his squadron commander regarding whether the video
camera had been used during the mishap flight; (7) Schweitzer’s
testimony established that Ashby, with full knowledge of the
ongoing Italian and CIB investigations (which could result in
the preferral of criminal charges), heard and acceded to the
recommendation of Capt. Seagraves to get rid of the videotape;
and (8) Schweitzer testified that Ashby gave him the tape to
“get rid of it,” Ashby was in agreement with him to destroy the
tape, and he destroyed the tape with the specific intent to
impede the Italian investigation. Ashby, 2007 CCA LEXIS 235, at
*22-*32, 2007 WL 1893626, at *6-*10.

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United States v. Ashby, No. 08-0770/MC

Ashby’s convictions. The Government urges that it is

unrealistic to believe Ashby was unaware that a criminal

investigation would be forthcoming at the time of his

misconduct.

In analyzing this issue, we consider the elements of

Article 133, UCMJ, conduct unbecoming an officer and a

gentleman, as well as the elements of the underlying offenses,

Article 134, UCMJ, 10 U.S.C. § 934 (2000), obstruction of

justice and Article 81, UCMJ, 10 U.S.C. § 881 (2000),

conspiracy. We recently reaffirmed that the criminal conduct

sought to be punished by an Article 133, UCMJ, offense is the

act of committing dishonorable or compromising conduct,

regardless of whether the underlying conduct constitutes an

offense under the UCMJ. United States v. Conliffe, 67 M.J. 127,

132 (C.A.A.F. 2009) (quoting United States v. Giordano, 15

C.M.A. 163, 168, 35 C.M.R. 135, 140 (1964)). Here, however, the

Government chose to charge the Article 133, UCMJ, offense of

conduct unbecoming an officer and a gentleman by incorporating

the separate offenses of obstruction of justice and conspiracy,

and the military judge instructed the panel on the elements of

all three offenses. Where the Government chooses to incorporate

separate offenses into the Article 133, UCMJ, charge and where

the military judge has instructed on the elements of those

offenses, we will analyze the legal sufficiency of the Article

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United States v. Ashby, No. 08-0770/MC

133, UCMJ, offense by determining whether there was legally

sufficient evidence supporting all of the elements instructed

upon by the military judge.

The elements of Article 133, UCMJ, are: (1) the accused

did or omitted to do certain acts; and (2) under the

circumstances, these acts or omissions constituted conduct

unbecoming an officer and gentleman. Manual for Courts-Martial,

United States pt. IV, para. 59.b (2008 ed.) (MCM).

The elements of obstruction of justice are: (1) the

accused wrongfully did a certain act; (2) he did so in the case

of a person against whom he had reason to believe that there was

or would be criminal proceedings pending; (3) he did so with the

intent to obstruct the administration of justice; and (4) under

the circumstances, the accused’s conduct was prejudicial to good

order and discipline in the armed forces or was service

discrediting. MCM pt. IV, para. 96.b.

The elements of conspiracy to obstruct justice are: (1)

the accused entered into an agreement with another person to

obstruct justice; and (2) while the agreement continued to

exist, and while the accused remained a party to the agreement,

the accused or his coconspirator performed an overt act for the

purpose of bringing about the object of the conspiracy. MCM pt.

IV, para. 5.b.

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United States v. Ashby, No. 08-0770/MC

It is important to note that the time period of the two

charged specifications was not limited to February 3, 1998, the

date of the incident, but rather extended from that date

through March 14, 1998, well after the date of the tape’s

destruction. Therefore our review of the evidence as to Ashby’s

subjective belief regarding a possible criminal investigation is

not limited to the date of the incident. We find that the

evidence is clearly sufficient to support Ashby’s convictions.

Evidence which supports a finding that Ashby had reason to

believe that there would be a criminal proceeding pending

against him when he removed the tape from the aircraft includes:

(1) testimony that the plane was badly damaged and required an

emergency landing after striking something; (2) Ashby’s

statements during a telephone conversation shortly after the

incident indicating that he believed that they may have struck a

tower cable that went to a gondola and that they would get

“drilled really hard” for it; (3) testimony that Ashby and

Schweitzer not only took the recorded tape with the intent to

watch it before handing it over to the authorities, but replaced

it with a blank tape; (4) Schweitzer’s admission that he acted

with an intent to deceive when he left the camera containing a

blank tape in the plane; and (5) Ashby’s admission that it was

wrong to take the videotape and that he did so because he wanted

to view it before anyone else viewed it and could “nitpick” it.

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United States v. Ashby, No. 08-0770/MC

There is additional evidence from the period of time that

commenced when Ashby secreted the tape in his quarters until the

time that Schweitzer destroyed the tape that supports a finding

that Ashby had reason to believe that there was or would be

criminal proceedings against him.4 This includes evidence that:

(1) on February 3, 1998, shortly after the incident, Ashby and

Schweitzer learned that twenty people had been killed; (2) Ashby

and Schweitzer learned as early as February 4, 1998, that they

were under criminal investigation by the Italian authorities;

(3) Schweitzer gave his commanding officer the impression that

they had not used the camera during the flight; and (4) Ashby

admitted that he feared going to an Italian jail as early as

February 4, 1998. Based on the above evidence, a reasonable

factfinder could have found all of the elements of obstruction

of justice were met in this case.

With regard to the offense of conspiracy, a reasonable

factfinder also could have found beyond a reasonable doubt that

4
Ashby urges that we adopt the holding in United States v. Gray,
28 M.J. 858, 861 (A.C.M.R. 1989), which held that an official
act or investigation must be manifest before an accused can be
found guilty of obstruction of justice. The holding in Gray is
not only contrary to the language of the MCM, which requires
only proof that the accused had reason to believe that there was
or would be criminal proceedings pending, it is contrary to this
court’s precedent. See United States v. Barner, 56 M.J. 131,
136 (C.A.A.F. 2001) (“[O]bstructing justice can occur where the
appellant ‘believed that some law enforcement official of the
military . . . would be investigating his actions.’”) (citation
omitted).

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United States v. Ashby, No. 08-0770/MC

Ashby agreed with Schweitzer to obstruct justice in a criminal

proceeding and committed an overt act in furtherance of that

agreement. Ashby and Schweitzer remained in the cockpit

together after the other two crewmembers had evacuated the

aircraft in accordance with protocol. They discussed what to do

with the videotape, and Schweitzer told Ashby he thought they

should take the tape. Ashby then removed the tape, replaced it

with a blank one, and took the recorded tape with him when he

left the aircraft. Ashby kept the tape in his quarters and did

nothing with the tape until Schweitzer approached him about it

several days later. After discussing what to do with the tape,

Ashby eventually gave it to Schweitzer knowing that he was going

to get rid of it. There is no evidence in the record which

compels the conclusion that Ashby merely acceded to Schweitzer’s

authority in handing over the videotape. We hold that the

evidence presented at trial supports a finding that all of the

elements of conspiracy were met.

Finally, with regard to the elements of Article 133, UCMJ,

there is legally sufficient evidence that Ashby committed the

charged acts, as discussed above. There also is abundant

evidence supporting a conclusion that, under the circumstances,

Ashby’s acts or omissions constituted conduct unbecoming an

officer and a gentleman. Ashby himself admitted that his

actions in taking the videotape and failing to hand it over to

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United States v. Ashby, No. 08-0770/MC

the authorities were wrongful. As a captain in the United

States Marine Corps who was the pilot of an aircraft that had

been involved in an international incident which caused the

deaths of twenty civilians, Ashby’s conduct in concealing

potential evidence and assisting in its destruction was clearly

conduct unbecoming an officer and a gentleman.

II.

WHETHER THE LOWER COURT ERRED IN AFFIRMING THE
MILITARY JUDGE’S DECISION TO EXPAND THE TERM “CRIMINAL
PROCEEDING” TO INCLUDE OBSTRUCTION OF FOREIGN CRIMINAL
PROCEEDINGS.

Obstruction of justice underlies both of Ashby’s

convictions for conduct unbecoming an officer and a gentleman.

As discussed above, the members were instructed that they must

find that Ashby’s conduct met all of the elements of the offense

of obstruction of justice as well as the elements of the offense

of conduct unbecoming an officer and a gentleman. One of the

elements of obstruction of justice under Article 134, UCMJ, is

that the accused knew or had reason to know that there would be

“criminal proceedings” pending. MCM pt. IV, para. 96.b.(2).

The MCM does not define “criminal proceedings,” but does

provide:

Examples of obstruction of justice include wrongfully
influencing, intimidating, impeding, or injuring a
witness, a person acting on charges under this
chapter, an investigating officer under R.C.M. 406, or
a party; and by means of bribery, intimidation,
misrepresentation, or force or threat of force

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delaying or preventing communication of information
relating to a violation of any criminal statute of the
United States to a person authorized by a department,
agency, or armed force of the United States to conduct
or engage in investigations or prosecutions of such
offenses; or endeavoring to do so.

MCM pt. IV, para. 96.c.

Prior to trial, the military judge denied Ashby’s motion in

limine to prevent the Government from arguing that the act of

obstructing a foreign criminal investigation could support a

charge of obstruction of justice. The military judge ruled that

foreign criminal proceedings would fall under the definition of

“criminal proceedings” in the MCM if the Government showed that

the actions of the accused in obstructing such proceedings were

directly prejudicial to good order and discipline or service

discrediting. Ultimately, the military judge instructed the

panel that the term “criminal proceedings” includes:

obstruction of foreign criminal proceedings or
investigations when such obstruction of the criminal
proceedings or investigation have a direct impact upon
the efficacy of the United States criminal justice
system by being directly prejudicial to good order and
discipline in the Armed Forces or being directly
discreditable to the Armed Forces.

In this assignment of error, Ashby argues that it is an

unwarranted expansion of the term “criminal proceedings” to

include foreign criminal proceedings. He argues that such an

interpretation is contrary to both a plain reading of MCM pt.

IV, para. 96, which contemplates obstruction of justice only in

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United States v. Ashby, No. 08-0770/MC

the context of a United States criminal statute or

investigation, as well as the body of case law on the subject.

The Government responds that the offense of obstruction of

justice should be broadly interpreted to include conduct that

impedes a foreign criminal proceeding, noting that nothing in

the MCM limits the scope of the offense to federal or military

criminal proceedings.

The fact that the MCM discussion does not include a

reference to a foreign criminal proceeding is not dispositive.

The examples referenced in the MCM discussion are merely

illustrative, not exclusive. See MCM pt. IV, para. 60c(6)(c):

“If conduct by an accused does not fall under any of the listed

offenses for violations of Article 134 in this Manual . . . a

specification not listed in this Manual may be used to allege

the offense.” Because neither Article 133, UCMJ, nor Article

134, UCMJ, expressly prohibit charging an obstruction of a

foreign investigation, the question becomes whether Ashby had

sufficient notice that his conduct could violate Article 133,

UCMJ. Parker v. Levy, 417 U.S. 733, 755-56 (1974).

Due process requires that a person have fair notice that an

act is criminal before being prosecuted for it. United States

v. Saunders, 59 M.J. 1, 6 (C.A.A.F. 2003). The Supreme Court

examined the issue of notice in the context of Articles 133,

UCMJ, and 134, UCMJ, in Parker, 417 U.S. at 754-57. In

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United States v. Ashby, No. 08-0770/MC

upholding the statutes against a constitutional challenge for

vagueness, the Court noted that the statutes had been narrowed

by example and that content was supplied by custom and usage.

The test to be applied was articulated as:

[v]oid for vagueness simply means that criminal
responsibility should not attach where one could not
reasonably understand that his contemplated conduct is
proscribed. In determining the sufficiency of the
notice a statute must of necessity be examined in the
light of the conduct with which a defendant is
charged.

Id. at 757 (citation omitted); see United States v. Frazier, 34

M.J. 194, 198-99 (C.M.A. 1992) (the question is whether a

reasonable military officer would have “no doubt” that the

charged activities constituted conduct unbecoming an officer and

a gentleman).

Ashby cannot fairly claim that he lacked notice of the

criminality of his conduct by virtue of the absence of the

inclusion of foreign criminal proceedings in the MCM.

Undoubtedly, conduct of a United States military officer

designed to prevent authorities of an allied foreign nation from

investigating a fatal accident on its national soil involving

United States military personnel may constitute conduct

unbecoming an officer and a gentleman. See, e.g., United States

v. Bailey, 28 M.J. 1004, 1007 (A.C.M.R. 1989) (“It can hardly be

gainsaid that it brings discredit upon the armed forces of the

United States when a soldier makes false statements to foreign

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law enforcement officials regarding an offense in which the

soldier is involved with a citizen of the host country.”).

Here, a number of factors support the conclusion that Ashby had

reasonable notice that taking the videotape from the mishap

aircraft, secreting it in his quarters, and eventually providing

the tape to Schweitzer to “get rid of it” was both service

discrediting and conduct unbecoming an officer and a gentleman.

The NATO Status of Forces Agreement (NATO SOFA) between the

United States and Italy imposes a duty on both parties to assist

in carrying out investigations, collecting and producing

evidence, and handing over objects related to an offense.5 An

experienced officer in Ashby’s position would or should have

been on notice of the NATO SOFA provisions.6 As such, Ashby had

notice that his conduct in failing to hand over a videotape that

he knew would have evidentiary value in an Italian investigation

violated his official duties. Notice also arises from the fact

that acts of dishonesty and deceit are prohibited by

illustration in both Article 133, UCMJ, and Article 134, UCMJ.

5
Agreement Between the Parties to the North Atlantic Treaty
Regarding the Status of Forces, Article VII, para. 6(a), June
19, 1951, 4 U.S.T. 1792, 199 U.N.T.S. 67.
6
Although there is no direct evidence in the record that Ashby
had actual knowledge of this provision of the NATO SOFA, there
is no dispute that he was aware of the agreement as he
acknowledged his rights under that treaty when he signed the
minutes of the Italian magistrate’s interrogation in the
presence of his Italian counsel on February 4, 1998.
Additionally, Ashby testified that he was on his second
deployment to Aviano at the time of the gondola incident.

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See, e.g., MCM pt. IV, paras. 59.c.(2), 77 (false pass), 78

(obtaining services under false pretenses), and 79 (false

swearing). In addition, common sense supports the conclusion

that Ashby was on notice that his conduct violated the UCMJ. We

have no doubt that Ashby, as a seasoned officer and aircraft

pilot, understood that under the circumstances his actions would

reflect poorly upon him as an officer and would discredit the

service. We simply find nothing in the UCMJ or in the cases

presented by Ashby that supports his contention that the conduct

in this case cannot be sustained as conduct unbecoming an

officer and a gentleman because the criminal investigation that

was impeded was foreign rather than domestic or military.7

III.

WHETHER THE LOWER COURT ERRED IN AFFIRMING THE
MILITARY JUDGE’S DECISION TO PERMIT FAMILIES OF THE
VICTIMS OF THE GONDOLA CRASH TO TESTIFY ON SENTENCING.

Over defense objection, the military judge permitted three

family members of victims who died in the gondola incident to

testify during the Government’s case in aggravation. The

7
Our ruling today is limited to factual situation before the
court -- whether an Article 133, UCMJ, conduct unbecoming an
officer and a gentleman specification is legally sufficient
where the conduct underlying the charge was incorporated by
reference as an Article 134, UCMJ, obstruction of justice
charge, and where the military judge’s instruction linked the
obstruction of the foreign criminal proceeding to conduct that
was “directly prejudicial to good order and discipline in the
Armed Forces or being directly discreditable to the Armed
Forces.”

20
United States v. Ashby, No. 08-0770/MC

military judge limited the witnesses’ testimony, permitting each

witness only to: (1) identify himself or herself as a relative

of one of the victims; and (2) testify that not knowing what was

on the videotape had left lingering questions regarding his or

her loss. He concluded:

I find that the proffered testimony of the three
witnesses regarding their lingering questions as to
what was on the videotape to be relevant. I also find
that a reasonable link exists between such testimony
and the offenses before the [c]ourt.

I find the probative value of such testimony to
substantially outweigh the danger of unfair prejudice,
confusion or delay in this trial.

The three witnesses were Georgio Vaia, Rita Wunderlich, and

Emma Aurich. Vaia testified he was the nephew of the gondola

operator. He indicated that he had learned about the missing

videotape because he followed the investigation into the

incident. When asked whether he had lingering questions about

the videotape, Vaia testified:

When you have a suffering in the family, when you lose
somebody who is very dear, a dear family member,
however heavy that suffering may be, you try to accept
what has happened; and that acceptance is very
gradual, but it can be helped by knowing what has
happened.

Vaia affirmed that knowing that the videotape had been destroyed

had made it difficult for him to get closure.

Wunderlich testified that her forty-three-year-old husband

and six of their friends were killed in the gondola accident.

21
United States v. Ashby, No. 08-0770/MC

She testified that she learned about the missing videotape from

the press. She testified that, as a result of knowing that a

videotape had been destroyed, she had many lingering questions

that “d[id] not give [her] any peace.”

Aurich was the final of the three witnesses. When asked

who the members of her family were, she responded: “I don’t

have anybody anymore. They are all dead.” She affirmed that

her forty-year-old son and daughter-in-law were killed in the

gondola accident. Aurich acknowledged that she learned of the

missing videotape as she followed reports of the investigation.

When asked whether she had lingering questions knowing that the

tape had been destroyed, she responded: “Yes. Yes. I’m

suffering. It’s painful, and I am suffering.” She affirmed

that the lingering questions would “follow [her throughout her]

whole life because [she did not] know how they will be

answered.”

Immediately following the above testimony, the military

judge instructed the panel members:

[Y]ou are not invited or asked to redress any wrong
befalling the victims’ family in this case but rather
to perform your proper role as a representative of the
community at large to adjudge . . . an appropriate
sentence in this case.

. . . [T]he conduct of the flight and the
responsibility for the deaths and the damage to the
aircraft have already been the subject of another
proceeding and are not before you for resolution.

22
United States v. Ashby, No. 08-0770/MC

. . . .

So, again, during this phase of the trial, you
will not be determining a sentence based upon either
the deaths or damage to the aircraft.

We review a military judge’s decision on the admission of

evidence in aggravation at sentencing for an abuse of

discretion. United States v. Stephens, 67 M.J. 233, 235

(C.A.A.F. 2009). At sentencing, “trial counsel may present

evidence as to any aggravating circumstances directly relating

to or resulting from the offenses of which the accused has been

found guilty.” Rule for Courts-Martial (R.C.M.) 1001(b)(4).

Evidence in aggravation includes “evidence of . . .

psychological . . . impact on . . . any person . . . who was the

victim of an offense committed by the accused . . . .” Id.

Even if admissible under R.C.M. 1001(b)(4), the evidence must

pass the balancing test of Military Rule of Evidence (M.R.E.)

403. M.R.E. 403 states “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

misleading the members, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.”

Where the military judge conducts a proper M.R.E. 403 balancing

on the record, we will not overturn his ruling unless we find a

clear abuse of discretion. Stephens, 67 M.J. at 235. Here the

military judge performed a M.R.E. 403 balancing test and found

23
United States v. Ashby, No. 08-0770/MC

“the probative value of such testimony to substantially outweigh

the danger of unfair prejudice, confusion or delay in this

trial.”

Ashby does not argue that the testimony fails to meet the

requirements of R.C.M. 1001(b)(4), but does argue that admission

of the evidence was an abuse of discretion because the

prejudicial effect of the evidence far outweighed its probative

value. He argues that the testimony was “enflaming” and

unnecessarily humanized the victims, unfairly portrayed him as

responsible for their deaths, and went beyond the military

judge’s limited mandate.

We disagree with Ashby’s characterization of this testimony

and conclude that the military judge did not abuse his

discretion in admitting it. The military judge recognized the

possible prejudicial effect of the testimony and substantially

limited it to include only the effect that the missing videotape

had on the witnesses’ ability to process his or her loss. He

ensured that the witnesses’ testimony did not go beyond those

limitations in any meaningful way. While the testimony was

prejudicial to the defense -- after all that is the general

purpose of evidence in aggravation -- the evidence was not

unfairly prejudicial. In its restricted form, the testimony was

brief and rather straightforward. Although the record reflects

that the witnesses were visibly emotional during their

24
United States v. Ashby, No. 08-0770/MC

testimony, they were not disruptively so. In its limited form,

the admission of the testimony was not an abuse of discretion.

IV.

WHETHER THE LOWER COURT ERRED IN SUMMARILY DISMISSING
APPELLANT’S ARGUMENT THAT THE MILITARY JUDGE ABUSED
HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR A
MISTRIAL BASED ON THE TRIAL COUNSEL’S COMMENTS
REFERENCING (1) APPELLANT’S INVOCATION OF HIS RIGHT TO
REMAIN SILENT TO ITALIAN AUTHORITIES; AND (2) HIS
GENERAL RIGHT TO REMAIN SILENT WITH RESPECT TO NOT
DISCLOSING INFORMATION ABOUT THE VIDEOTAPE.

During her opening statement, trial counsel told the

members that Ashby had admitted that he never told anyone about

the videotape even though he knew that there was going to be an

investigation into the incident. She then stated that Ashby,

Schweitzer, and Capt. Seagraves met and discussed what they

should do with the videotape even after they knew that twenty

civilians had been killed and after they had appeared before an

Italian prosecutor. She went on to tell the members:

Even prior to that appearance before this Italian
prosecutor, they were assigned Italian defense
counsel. You will hear testimony by these crew
members that they were told that they had a right to
remain silent, similar to American law, and that they
invoked that right to remain silent.

Immediately following trial counsel’s opening statement,

the defense requested a recess and the panel members were

excused. Trial defense counsel moved for a mistrial based on

trial counsel’s comment about Ashby’s failure to disclose the

existence of the tape and his invocation of his right to remain

25
United States v. Ashby, No. 08-0770/MC

silent. After holding an R.C.M. 915(a) hearing on the motion

outside the presence of the panel, the military judge denied the

motion for a mistrial. He found that, while trial counsel’s

references to the fact that Ashby did not tell anyone about the

videotape were based on evidence before the court, this was “not

an area that counsel needed to be addressing.” He also found

that trial counsel’s reference to Ashby’s invocation of his

right to remain silent was clear error. The military judge went

on to conclude that these errors could be appropriately

addressed through a curative instruction.

The military judge gave the parties an opportunity to re-

voir dire the members and required trial counsel to redact her

statements. He also gave the parties an opportunity to draft a

proposed curative instruction. The defense declined the offer

to re-voir dire the panel and suggested that additional language

be added to the Government’s proposed curative instruction. The

military judge called the panel members back into the courtroom

and instructed them:

I want to just remind you that Captain Ashby has an
absolute right to remain silent at all times. I want
to remind you that you will not draw any inference
adverse to Captain Ashby from any comment by the trial
counsel in her opening statement that might suggest
that Captain Ashby invoked his right to remain silent.
You are directed to disregard any comment by trial
counsel that may have alluded to any silence by
Captain Ashby. You must not hold this against Captain
Ashby for any reason, or speculate as to this matter.
You are not permitted to consider that Captain Ashby

26
United States v. Ashby, No. 08-0770/MC

may have exercised his absolute right to remain
silent, at any time, as evidence for any purpose.

As you know, we spent a great deal of time
yesterday talking about the accused’s right to remain
silent. Accordingly, Captain Ashby was not required
to speak to anyone about the video tape. Again, to
the extent that the trial counsel may have implied
that he was required to speak to anyone about the
tape, that was incorrect.

The panel members were individually polled and each indicated

that he would not let trial counsel’s comments impact his

deliberations. The military judge reiterated these instructions

at the conclusion of the evidence.

Ashby argues that the military judge erred in finding that

a curative instruction could alleviate the “egregious” harm

arising from the improper comments that trial counsel made

during her opening statement. He asserts that the comments

suggested to the members that he had something to hide and

argues that the error was compounded by other evidence that the

Government introduced at trial suggesting that he exercised his

right to remain silent.8 The Government responds that the

8
In support of this argument, Ashby cites to the testimony of
the Italian magistrate that: (1) he initiated a criminal
investigation in this case on February 3, 1998; (2) on February
4, 1998, he interrogated Ashby and the other crewmembers; and
(3) on that day, Ashby signed a document acknowledging that he
was the subject of an Italian criminal investigation. Ashby
also cites to testimony that a friend of his -- Capt. M -- did
not learn about the destruction of the videotape until Capt.
Seagraves came out with the information. We find nothing in
either the Italian magistrate’s or Capt. M’s testimony that can

27
United States v. Ashby, No. 08-0770/MC

military judge’s curative instruction was an appropriate

remedial measure and obviated the need for a mistrial.

R.C.M. 915(a) vests military judges with the discretion to

declare a mistrial when “manifestly necessary in the interest of

justice because of circumstances arising during the proceedings

which cast substantial doubt upon the fairness of the

proceedings.” However, the discussion to the rule advises

caution, noting that mistrials are to be used “under urgent

circumstances, and for plain and obvious reasons.” R.C.M. 915

Discussion; see United States v. Garces, 32 M.J. 345, 349

(C.M.A. 1991) (mistrial is a drastic remedy used to prevent

miscarriage of justice). Because of the extraordinary nature of

a mistrial, military judges should explore the option of taking

other remedial action, such as giving curative instructions.

United States v. Fisiorek, 43 M.J. 244, 247 (C.A.A.F. 1995);

United States v. Evans, 27 M.J. 34, 39 (C.M.A. 1988). We will

not reverse a military judge’s determination on a mistrial

absent clear evidence of an abuse of discretion. United States

v. Rushatz, 31 M.J. 450, 456 (C.M.A. 1990).

It is blackletter law that a trial counsel may not comment

on the accused’s exercise of his constitutionally protected

rights, including his right to remain silent. M.R.E. 301(f)(3);

be construed as an additional comment on Ashby’s exercise of his
right to remain silent.

28
United States v. Ashby, No. 08-0770/MC

United States v. Moran, 65 M.J. 178, 186 (C.A.A.F. 2007).

Therefore we concur with the military judge’s assessment that

trial counsel’s comments referencing Ashby’s invocation of his

right to remain silent were improper. Moran, 65 M.J. at 186-87.

We must now determine whether the error resulted in a

miscarriage of justice requiring a mistrial. As this error was

of constitutional dimension, we also must determine whether the

error and the military judge’s curative efforts rendered it

harmless beyond a reasonable doubt. Chapman v. California, 386

U.S. 18, 24 (1967) (“[B]efore a federal constitutional error can

be held harmless, the court must be able to declare a belief

that it was harmless beyond a reasonable doubt.”).

In analyzing this question, we ask “‘whether there is a

reasonable possibility that the evidence [or error] complained

of might have contributed to the conviction.’” United States v.

Paige, 67 M.J. 442, 451 (C.A.A.F. 2009) (quoting Moran, 65 M.J.

at 187) (alteration in original). The question is not whether

the members were “totally unaware” of the error; rather, the

essence of a harmless error is that it was “‘unimportant in

relation to everything else the jury considered on the issue in

question.’” Moran, 65 M.J. at 187 (quoting Yates v. Evatt, 500

U.S. 391, 403 (1991), overruled on other grounds by Estelle v.

McGuire, 502 U.S. 62, 72 n.4 (1991)). We analyze trial

29
United States v. Ashby, No. 08-0770/MC

counsels’ comments in the context of the entire court-martial.

Id. at 186.

Upon consideration of the entire record, we hold that the

error was harmless beyond a reasonable doubt. The military

judge took immediate corrective action which included giving the

members a curative instruction, requiring trial counsel to

redact her statements, and asking each member individually

whether he could follow the military judge’s instructions. He

also reminded the members at the close of the evidence about

Ashby’s absolute right to remain silent. Absent evidence to the

contrary, the members are presumed to follow the military

judge’s instructions. United States v. Jenkins, 54 M.J. 12, 20

(C.A.A.F. 2000). We conclude that the military judge’s actions

following the improper comment adequately cured the error and

rendered it harmless beyond a reasonable doubt. As such, a

mistrial was not an appropriate remedy. Rushatz, 31 M.J. at 456

(“Giving a curative instruction, rather than declaring a

mistrial, is the preferred remedy for curing error when court

members have heard inadmissible evidence, as long as the

curative instruction avoids prejudice to the accused.”)

(citation omitted).

V.

WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN NOT
FINDING THAT A SENTENCE WHICH INCLUDED SIX MONTHS OF

30
United States v. Ashby, No. 08-0770/MC

CONFINEMENT AND AN APPROVED DISMISSAL WAS
INAPPROPRIATELY SEVERE.

VI.

WHETHER THE LOWER COURT ERRED IN SUMMARILY DISMISSING
APPELLANT’S ARGUMENT THAT THE DESTRUCTION OF THE
VIDEOTAPE HAD NO EFFECT ON THE ADMINISTRATION OF
JUSTICE BECAUSE IT CONTAINED NO MATERIAL EVIDENCE.

Having considered Issues V. and VI., we find no error and

therefore affirm the Court of Criminal Appeals.

VII.

WHETHER APPELLANT’S DUE PROCESS RIGHTS HAVE BEEN
VIOLATED BY THE UNTIMELY POST-TRIAL PROCESSING AND
APPELLATE REVIEW OF HIS COURT-MARTIAL.

Over ten years have elapsed since Ashby’s trial. He was

sentenced on May 10, 1999. The convening authority took action

on January 3, 2000. The case was docketed at the Navy-Marine

Corps court on March 13, 2000. On December 4, 2003, after

filing thirty-three motions for an enlargement of time,

appellate defense counsel filed a brief on Ashby’s behalf. The

Government answered on September 2, 2004, after filing six

motions for an enlargement of time. The lower court issued its

initial decision in this case on June 27, 2007, 2,970 days --

over eight years -- after Ashby was sentenced. The decision on

further review after remand was issued on June 17, 2008.

Despite this significant period of delay, Ashby did not

initially complain about delay before the Court of Criminal

Appeals. In its June 27, 2007 opinion, that court, sua sponte,

31
United States v. Ashby, No. 08-0770/MC

raised and addressed the issue of post-trial delay. Ashby, 2007

CCA LEXIS 235, at *123, 2007 WL 1893626, at *42. The lower

court found that, while the delay in this case denied Ashby his

due process right to speedy review and appeal and was so

egregious that tolerating it would adversely affect the public’s

perception of the fairness and integrity of the military justice

system, the due process violation was harmless beyond a

reasonable doubt. Id. at *127-*129, 2007 WL 1893626, at *42-

*43. The lower court reasoned that Ashby had never asserted his

right to a speedy review and appeal and his assignments of error

lacked merit. Id. at *128, 2007 WL 1893626, at *43. The court

noted that, when it reviewed the case on remand, it would

consider at that time whether it would be appropriate to grant

discretionary relief for the delay under Article 66(c), UCMJ, 10

U.S.C. § 866 (2000). Id.

When the case was returned for further review, the lower

court reconsidered the issue of harm arising from the delay and

reaffirmed that the constitutional error in this case remained

harmless beyond a reasonable doubt. Ashby, No. NMCCA 200000250,

slip op. at 4. The lower court noted that Ashby’s only

allegation of specific prejudice -- an assertion that he would

be prejudiced at any rehearing -- was rendered moot by the

court’s resolution of his assignments of error against him. Id.

The court stated: “We further find that the length of the delay

32
United States v. Ashby, No. 08-0770/MC

in this case does not affect the findings and sentence that

should be approved under Article 66(c), UCMJ.” Id.

Before this court Ashby argues that the post-trial delay in

his case violated his due process rights and was so

extraordinary that the lower court should have granted him

discretionary relief under its Article 66(c), UCMJ, authority.

He also asserts that the lower court ignored the materials

submitted with his second clemency request, which established

that he suffered lost employment opportunities, was unable to

travel, and suffered mental anguish as a result of the delay.

The Government argues that the lower court was correct in

ultimately denying Ashby relief and urges that providing relief

for the delay in this case would provide Ashby with an

undeserving windfall.

Article 66(c), UCMJ, vests in the Courts of Criminal

Appeals broad authority to determine the findings and sentence

that should be approved. Toohey v. United States, 60 M.J. 100,

103 (C.A.A.F. 2004). In conducting its sentence appropriateness

review under Article 66(c), UCMJ, a Court of Criminal Appeals

has “‘broad discretion to grant or deny relief for unreasonable

or unexplained [post-trial] delay . . . .’” United States v.

Pflueger, 65 M.J. 127, 128 (C.A.A.F. 2007) (quoting United

States v. Bodkins, 60 M.J. 322, 324 (C.A.A.F. 2004)) (alteration

in original). “The power to review a case for sentence

33
United States v. Ashby, No. 08-0770/MC

appropriateness . . . is vested in the Courts of Criminal

Appeals, not in [this] Court, which is limited to errors of

law.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999).

Here, the Court of Criminal Appeals properly performed its

Article 66(c), UCMJ, sentence appropriateness review on the

record, and we will not disturb its conclusion that the delay

did not affect the findings and sentence that should be

approved. Nor do we fault the Court of Criminal Appeals for

failing to address Ashby’s employment prejudice argument, which

was based upon clemency materials submitted to the convening

authority but was not argued before that court.

We agree with the lower court that upon balancing the four

factors outlined in United States v. Moreno, 63 M.J. 129, 135

(C.A.A.F. 2006), the unreasonable post-trial delay in this case

violated Ashby’s due process right to a speedy post-trial review

and appeal.9 The length of delay is facially unreasonable,

triggering the four-step inquiry and favoring Ashby in the

balancing analysis. The second factor also favors Ashby as

there are no legally supportable explanations for the delay.

See Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 38-

9
In assessing whether a facially unreasonable delay has resulted
in a due process violation, we weigh the following four factors,
as set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1)
the length of the delay; (2) the reasons for the delay; (3) the
appellant’s assertion of the right to timely review and appeal;
and (4) prejudice. Moreno, 63 M.J. at 135.

34
United States v. Ashby, No. 08-0770/MC

40 (C.A.A.F. 2003); Moreno, 63 M.J. at 136-38.10 The third

factor favors the Government as Ashby did not assert his right

to a timely review until the Court of Criminal Appeals raised

the issue, sua sponte, in its initial decision.

As to the Barker prejudice factor, Ashby has not sustained

his burden of showing particularized prejudice. After the case

was remanded, there remained no meritorious issues which may

have generated concern about Ashby’s ability to present a

defense or favorable matters at a rehearing. Ashby has not

suffered any oppressive incarceration. There is no indication

that Ashby suffered unusual anxiety or hardship separate from

that normally experienced by an individual awaiting an appeal.

The fact that Ashby did not raise the issue of post-trial delay

until after the lower court identified the issue cuts against

his claim that he was harmed by the delay. Ashby’s belated

claim that he lost job opportunities as a result of his

10
The Supreme Court recently held that the general rule, that a
delay caused by a defendant’s counsel is charged to the
defendant, applies equally to privately retained or publically
assigned counsel. Vermont v. Brillon, 129 S. Ct. 1283, 1292
(2009). The Court noted, however, that this rule was not
absolute and that delay resulting from a systemic breakdown in
the public defender system could be charged to the state. Id.
The impact of the Brillon decision on this court’s jurisprudence
was not briefed nor argued in this appeal and it is therefore
not appropriate for the court to address at this time.

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United States v. Ashby, No. 08-0770/MC

inability to travel due to his appellate leave status does not

establish actionable harm arising from the delay.11

Despite the fact that Ashby has not established prejudice

under the Barker analysis, in balancing and weighing the four

factors, we agree with the lower court that the delay violated

Ashby’s due process rights to a speedy post-trial review and

appeal.12

Having found a due process violation, we will grant relief

unless we find that the Government has met its burden of showing

that the constitutional error is harmless beyond a reasonable

doubt. United States v. Bush, 68 M.J. 96, __ (15) (C.A.A.F.

2009). We review de novo the question of whether the error is

harmless beyond a reasonable doubt. Id. at 15-16 (citing United

11
Ashby did not claim prejudice arising from lost employment
opportunities before the lower court. In his brief before this
Court and during oral argument, Ashby called our attention to a
letter from a potential employer, dated December 17, 2005, which
he submitted with his clemency materials when the case was
before the convening authority a second time. The letter does
not specifically state that the company would have hired Ashby
if he had a DD 214. It does, however, note that Ashby was
unable to travel and would “find it difficult to obtain a
government security clearance.” Obtaining a DD 214 would
alleviate Ashby’s inability to travel but, as we have affirmed
the Article 133, UCMJ, convictions, may or may not address the
difficulty he may have in obtaining a security clearance. Under
the circumstances of this case, this letter does not establish
specific prejudice under United States v. Jones, 61 M.J. 80, 85
(C.A.A.F. 2005).
12
See United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006)
(instructing on how to weigh the Barker factors when the delay
period is such that it could adversely affect the public’s
perception of the fairness in the military justice system).

36
United States v. Ashby, No. 08-0770/MC

States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006)). We

consider the totality of the circumstances in assessing whether

the due process violation is harmless beyond a reasonable doubt.

Id. at 17. We recently have noted that determining whether a

due process error was harmless beyond a reasonable doubt

necessarily involves analyzing the case for “prejudice,” but

that analysis for “prejudice” is separate and distinct from the

consideration of prejudice as one of the four Barker factors.

Id. at 18.

Having carefully examined the entire record, we agree with

the lower court that, under the totality of the circumstances,

the post-trial delay was harmless beyond a reasonable doubt.

Finding no convincing evidence of prejudice in the record, we

will not presume prejudice from the length of the delay alone.

Toohey, 63 M.J. at 363. As such, considering all the

circumstances of this case, we conclude that this error was

harmless beyond a reasonable doubt and no relief is warranted.

VIII.

WHETHER THE LOWER COURT ERRED IN FINDING (1) THAT
APPELLANT’S CASE WAS NOT TAINTED BY ACTUAL OR APPARENT
UNLAWFUL COMMAND INFLUENCE; AND (2) THAT LTGEN PACE
WAS NOT DISQUALIFIED TO ACT AS CONVENING AUTHORITY BY
VIRTUE OF BEING A TYPE 2 AND TYPE 3 ACCUSER.

The gondola incident was the focus of a great deal of

international and military attention. Normally, aircraft

37
United States v. Ashby, No. 08-0770/MC

incidents such as this one would call for an Aircraft Mishap

Board (AMB), but in this case, Lieutenant General (Lt. Gen.)

Pace, who was serving as the Commander, United States Marine

Corps Forces Atlantic, and Commander, United States Marine Corps

Forces Europe, convened a Command Investigation Board (CIB)

headed by his deputy, Major General (Maj. Gen.) DeLong. The CIB

was an administrative factfinding body, not a prosecutorial or

judicial entity. The CIB recommended that the mishap aircrew be

the subject of disciplinary or administrative action. Lt. Gen.

Pace ultimately referred the charges to a general court-martial.

This granted issue involves Ashby’s complaints of unlawful

command influence -- concerning actions of the CIB, as well as

some external actions taken outside the investigation -- and his

separate claim that Lt. Gen. Pace was disqualified from serving

as the convening authority in this case because he was an

“accuser” under R.C.M. 601(c). As to these claims, we adopt the

following relevant facts, as found by the military judge.

On February 4, 1998, the day after the gondola accident, at

Marine Corps Air Station, Cherry Point, North Carolina,

Lieutenant Colonel (Lt. Col.) Watters, the Commanding Officer of

the unit that had preceded Ashby’s unit in the rotation at

Aviano, advised all of the officers in his squadron to make any

low-level flight videotapes from Aviano “disappear.” Lt. Col.

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United States v. Ashby, No. 08-0770/MC

Watters was relieved of his command on February 6, 1998, because

of his speech to the officers.

After learning of Lt. Col. Watters’s speech and the

existence of video of a low-level flight several months earlier,

Maj. Gen. Ryan, the commander of the 2d Marine Aircraft Wing at

Cherry Point, addressed all of the aircrews from the Prowler

communities at Cherry Point at an all-officers meeting (AOM).

During the meeting, Maj. Gen. Ryan implied that the mishap

aircrew caused the accident and were intentionally breaking

rules by flying too low. He was perceptibly upset during the

meeting, and accused the Prowler community as a whole of

violating rules on low-level flights (“flathatting”), and

threatened them with punishment for violating flight rules.

Maj. Gen. Ryan gave similar speeches over the next several days.

He never specifically addressed any disciplinary proceedings

against the mishap aircrew, what would be an appropriate

punishment in the case, or whether fellow aviators should

testify in the case.

Lt. Gen. Pace and Maj. Gen. DeLong had virtually daily

telephonic contact throughout the duration of the CIB. These

conversations concerned proposed findings, conclusions, and

recommendations of the CIB. These conversations were monitored

by Lt. Gen. Pace’s SJA. All of Lt. Gen. Pace’s suggestions to

Maj. Gen. DeLong were to clarify issues and, in one instance,

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Lt. Gen. Pace suggested two areas for additional investigation.

Maj. Gen. DeLong also received numerous phone calls from other

senior officers seeking information about the progress of the

CIB, including at least one call from the Commandant of the

Marine Corps.

During the course of the CIB, there was intense

international media coverage of the gondola incident and

unsettled political relations between the United States and

Italy. These issues were known by the CIB members. Also while

the CIB investigation was ongoing, Brigadier General (Brig.

Gen.) Bowden, the Assistant Wing Commander for the 2d Marine

Aircraft Wing and Maj. Gen. Ryan’s deputy, conducted an

investigation of Prowler aircrews at Cherry Point to determine

whether there were systemic problems with aircrews not following

the flight rules for low-level flights. As part of this

investigation, each aircrew member was read his or her Article

31, UCMJ, 10 U.S.C. § 831 (2000), rights for possible

dereliction of duty.

Between February 21, 1998, and March 9, 1998, draft copies

of the CIB’s report were sent to Lt. Gen. Pace for his review

and comments. On March 10, 1998, the final report of the CIB

was submitted to Lt. Gen. Pace and others for their review and

action. Each member of the CIB affirmed that his or her

findings, opinions, and recommendations were not influenced by

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any contacts with superior commands, with the exception of those

issues raised by the testimony of one member.13

Lt. Gen. Pace began drafting an endorsement to the CIB’s

report. He composed it with the guidance of his legal counsel.

The endorsement stated Lt. Gen. Pace’s intent to convene an

Article 32, UCMJ, 10 U.S.C. § 832 (2000), investigation “to

consider whether charges such as involuntary manslaughter or

negligent homicide, damage to private and government property,

and dereliction of duty should be referred to a general court-

martial” against the mishap aircrew. Lt. Gen. Pace’s

headquarters issued a news release announcing these

recommendations and Lt. Gen. Pace’s agreement with the CIB’s

principal conclusion that the cause of the accident was the fact

that the aircrew flew lower than authorized.

On March 12, 1998, Maj. Gen. DeLong conducted a press

conference at which he announced the CIB’s findings. During

that press conference, he incorrectly stated that the gondola

cable system was marked on charts available to the aircrew.

There is no indication that this mischaracterization was

anything other than a mistake. He also stated that the cause of

13
One of the CIB members, Colonel (Col.) B, testified that some
members of the CIB had concerns about the frequency and number
of proposed changes being offered to their draft reports. Maj.
Gen. DeLong was apprised of the complaint and told the CIB
members not to be concerned about what others outside the Board
wanted them to say in their report.

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the mishap was aircrew error. After the press conference, Maj.

Gen. DeLong met with the unit that had replaced Ashby’s unit at

Aviano. At that meeting, he expressed his opinion that the

aircrew was “flathatting.”

The original charges were preferred against the four mishap

aircrew members on March 24, 1998, by Gunnery Sergeant Ciarlo.

The initial Article 32, UCMJ, session was held on April 20,

1998. The next day, Capt. Howard Marroto, an aviator assigned

to Ashby’s unit, met with the Commandant in his Washington, D.C.

office. The Commandant expressed that the mishap crew would be

disciplined if they did anything wrong and that “if someone is

guilty, they need to be punished.” Capt. Marroto is a friend of

both Ashby and Schweitzer, though not particularly close to

either. On May 20, 1998, Col. Triplett, the Commanding Officer

of Marine Air Group 14, sent an e-mail to members of his

command, cautioning them: “You need to brief your people on

this issue. You don’t want to be drug [sic] into this mess.”

He sent this e-mail in response to a message informing him how

to handle inappropriate discovery requests by the defense

counsel.

Lt. Gen. Pace referred the original charges against Ashby

and Schweitzer on July 10, 1998. The additional charges were

preferred against Ashby and Schweitzer after they were arraigned

on the original charges. After Ashby’s acquittal in his first

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court-martial, the United States Ambassador to Italy stated that

he was surprised at the verdict. In a press conference,

President Clinton declined to comment on the acquittal, but

Italian Prime Minister D’Alema expressed his disappointment in

the verdict.

Unlawful Command Influence

We first address Ashby’s claim of unlawful command

influence. Ashby argues that the record supports a finding that

the CIB board was so interwoven with the prosecutorial process

of the case that it was a “default preferral” and should not

fall outside of the prohibition against unlawful command

influence. He also argues that senior leadership exerted

unlawful command influence over potential witnesses in this case

by creating an overall “chilling environment,” and in the

following specific actions: (1) Maj. Gen. Ryan and Maj. Gen.

DeLong’s public speeches, amounting to “public condemnations of

Appellant” to the pool of aviators from whom Appellant would

select defense witnesses; (2) Brig. Gen. Bowden’s investigation

of other Prowler crews; (3) the Commandant’s comments to Capt.

Marotto; and (4) Col. Triplett’s e-mail to his command advising

his command to make sure they are not “drug [sic] into this

mess.” Ashby further contends that the established facts give

the case the appearance of unlawful command influence.

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The Government responds that Ashby has failed to identify

any facts that, if true, would call into question the fairness

of his court-martial. The Government urges us to reject

Appellant’s invitation to hold that administrative proceedings

can be the basis of a claim of unlawful command influence. The

Government notes that all of the events relating to the CIB

occurred before the conduct underlying the two Article 133,

UCMJ, charges came to light.

In Ashby’s first court-martial, the military judge

concluded that the concept of unlawful command influence did not

apply to actions taken by individuals during the CIB, which was

a purely administrative board, and, nonetheless, the CIB’s

decision did not result from outside influences. He further

concluded that the defense had presented insufficient evidence

of unlawful command influence to warrant shifting the burden of

proof to the Government on the issue and, alternatively, he was

convinced beyond a reasonable doubt that the charges against

Ashby were free from actual or apparent unlawful command

influence. In Ashby’s second court-martial, the military judge

re-affirmed his findings from the first court-martial regarding

the unlawful command influence allegations.

The Court of Criminal Appeals adopted the military judge’s

findings of fact. Ashby, 2007 CCA LEXIS 235, at *88-*89, 2007

WL 1893626, at *29. The court generally agreed with the

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military judge’s position that, because the CIB was merely a

factfinding entity and was not involved in the court-martial

proceedings, the principle of unlawful command influence was not

applicable to it. Id. at *90-*91, 2007 WL 1893626, at *30.

Nonetheless, the court was convinced beyond a reasonable doubt

that there was no unlawful command influence at any stage of the

proceedings, noting: (1) the lack of evidence that Lt. Gen.

Pace acted with the intent to influence the court-martial

proceedings; and (2) the fact that Ashby had not shown that any

of the other alleged statements or actions of leadership

officials, made or taken in response to the gondola tragedy, had

a specific direct or negative impact on the court-martial

process. Id. at *91-*94, 2007 WL 1893626, at *30-*31. The

lower court concluded that, nonetheless, no alleged unlawful

command influence affected the instant court-martial, as: (1)

Ashby was acquitted of all of the original charges against him;

and (2) he had not shown that this court-martial, which was

separate and distinct from the original court-martial, was

affected in any way by unlawful command influence. Id. at *94-

*97, 2007 WL 1893626, at *31.

Unlawful command influence has often been referred to as

“the mortal enemy of military justice.” United States v. Gore,

60 M.J. 178, 178 (C.A.A.F. 2004) (citation and quotation marks

omitted). Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2000),

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provides, in relevant part: “No person subject to this chapter

may attempt to coerce or . . . influence the action of a court-

martial or any other military tribunal or any member thereof, in

reaching the findings or sentence in any case . . . .” Even the

mere appearance of unlawful command influence may be “as

devastating to the military justice system as the actual

manipulation of any given trial.” United States v. Ayers, 54

M.J. 85, 94-95 (C.A.A.F. 2000) (citation and quotation marks

omitted). This Court has “repeatedly condemned unlawful command

influence directed against prospective witnesses.” Gore, 60

M.J. at 185.

An accused has the initial burden of raising the issue of

unlawful command influence. United States v. Stombaugh, 40 M.J.

208, 213 (C.M.A. 1994). This burden at trial is to 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. United States v. Biagase, 50

M.J. 143, 150 (C.A.A.F. 1999). On appeal, the defense must

“‘(1) show facts which, if true, constitute unlawful command

influence; (2) show that the proceedings were unfair; and (3)

show that the unlawful command influence was the cause of the

unfairness.’” United States v. Simpson, 58 M.J. 368, 374

(C.A.A.F. 2003) (quoting Biagase, 50 M.J. at 150).

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We conclude that Ashby has failed to show facts which, if

true, constituted unlawful command influence. His claims

regarding the CIB are predicated on communications between the

members of the CIB and various senior military officers.

However, he has failed to show facts which, if true, would

demonstrate that the CIB members were wrongfully influenced.

Ashby is asking us to speculate on pressure placed on members of

the CIB as a result of the attention that the military gave to

this case. Mere speculation that unlawful command influence

occurred because of a specific set of circumstances is not

sufficient. Ashby has failed to show that the senior military

officials’ interest in the CIB was anything other than proper,

official, and lawfully directed at completing a quality and

thorough investigation.14

With regard to Ashby’s claim of unlawful command influence

arising from the other actions by senior military officials,

including the Commandant, Ashby has not pointed to any specific

witnesses who decided not to testify because of the alleged

statements by senior military officials or any other specific

facts that the court-martial process was tainted by unlawful

command influence. Because of the highly publicized

14
We decline to adopt a blanket rule that unlawful command
influence can never exist in the context of an administrative
proceeding, but find that in this case it did not.

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international nature of the incident, it is understandable that

many senior military officials became publicly involved in the

aftermath and investigation of the accident. However, there is

no direct evidence that the actions of any of those officials

improperly influenced Ashby’s court-martial.

We also hold that the facts in this case did not create the

appearance of unlawful command influence. In addressing whether

the appearance of unlawful command influence has been created in

a particular situation, we consider, objectively, “the

perception of fairness in the military justice system as viewed

through the eyes of a reasonable member of the public.” United

States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006). We will find

the appearance of unlawful command influence where “an

objective, disinterested observer, fully informed of all the

facts and circumstances, would harbor a significant doubt about

the fairness of the proceeding.” Id. Under these

circumstances, the comments made by senior military officials in

the aftermath of the gondola accident and their official

involvement in the investigation of the incident could not

reasonably be perceived by a disinterested member of the public

as improper command influence or otherwise indicative of an

unfair proceeding.

As a final matter, we note that Ashby was acquitted on all

of the charges that were filed after the CIB issued its

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United States v. Ashby, No. 08-0770/MC

recommendation, and the CIB was neither aware of nor considered

the conduct underlying the Article 133, UCMJ, charges. It is

therefore not surprising that Ashby is unable to allege facts

which, if true, would constitute unlawful command influence when

the CIB members were unaware of the conduct underlying the

current charges.

Accuser Issue

The question of whether a convening authority is an

“accuser” under Article 1(9), UCMJ, 10 U.S.C. § 801(9) (2000),

is a question of law that we review de novo. See United States

v. Conn, 6 M.J. 351, 354 (C.M.A. 1979). Under Article 1(9),

UCMJ, an accuser is an individual: (1) “who signs and swears to

charges”; (2) “who directs that charges nominally be signed and

sworn to by another [type two accuser]”; or (3) “who has an

interest other than an official interest in the prosecution of

the accused [type three accuser].” An accuser may not convene a

general or special court-martial, nor may he refer charges to a

court-martial. R.C.M. 504(c)(1); R.C.M. 601(c). Convening

authorities are not disqualified from referring charges by prior

participation in the same case except when they have acted as

accuser.” R.C.M. 601(c) Discussion.

Ashby argues that the convening authority, Lt. Gen. Pace,

should have been disqualified from serving as the convening

authority in this case because he was an “accuser” within the

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United States v. Ashby, No. 08-0770/MC

definition in Article 1(9), UCMJ. Ashby contends that Lt. Gen.

Pace was a “type two” accuser because he essentially engineered

the preferral process through influencing the CIB and

identifying the charges in his endorsement of the CIB report --

the same charges that ultimately were preferred. Ashby asserts

that forwarding the CIB report was the functional equivalent of

directing specific charges to be preferred. He also argues that

Lt. Gen. Pace was a “type three” accuser by virtue of his deep

personal involvement in the CIB proceedings and predisposition

towards Ashby’s guilt. The Government responds that Lt. Gen.

Pace was not disqualified from acting as convening authority, as

there was no evidence that he was acting improperly or in

anything but his official capacity in taking actions regarding

the mishap incident.

In Ashby’s first court-martial, the military judge found

that Lt. Gen. Pace did not “direct” the preferral of any

particular charges against Appellant even though he forwarded

the CIB report for the drafting of charges and mentioned some

specific charges. The military judge noted that the similarity

between the charges mentioned in the endorsement to the CIB and

the charges that appeared on the charge sheet was a result of a

legal review of the CIB. He also found that Lt. Gen. Pace’s

interest in the disposition of the allegations and preferred

charges was an official interest only. In Ashby’s second court-

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United States v. Ashby, No. 08-0770/MC

martial, the military judge ruled that Lt. Gen. Pace had no

interest in the current charges other than an official one.

Addressing this issue on appeal, the lower court concluded

that Lt. Gen. Pace was neither a “type two” nor a “type three”

accuser regarding the original charges preferred against Ashby,

since: (1) there was no credible evidence that Lt. Gen. Pace

“directed” that charges specifically be preferred; and (2) the

evidence established that Lt. Gen. Pace’s interest in the

disposition of the allegations and preferral of charges against

Ashby was only an “official” one and that he did not abandon his

neutral role and become an “accuser.” Ashby, 2007 CCA LEXIS

235, at *65-*66, *70-*74, 2007 WL 1893626, at *21-*23.

The test for determining whether a convening authority is

an accuser is “‘whether he was so closely connected to the

offense that a reasonable person would conclude that he had a

personal interest in the matter.’” United States v. Voorhees,

50 M.J. 494, 499 (C.A.A.F. 1999) (quoting United States v.

Jackson, 3 M.J. 153, 154 (C.M.A. 1977)). “Personal interests

relate to matters affecting the convening authority’s ego,

family, and personal property” and “[a] convening authority’s

dramatic expression of anger towards an accused might also

disqualify the commander if it demonstrates personal animosity.”

Id. We have found a personal interest where, for example, the

convening authority is the victim in the case, United States v.

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United States v. Ashby, No. 08-0770/MC

Gordon, 1 C.M.A. 255, 2 C.M.R. 161 (1952); where the accused

attempted to blackmail the convening authority, United States v.

Jeter, 35 M.J. 442 (C.M.A. 1992); and where the accused had

potentially inappropriate personal contacts with the convening

authority’s fiancée, United States v. Nix, 40 M.J. 6 (C.M.A.

1994).

We have carefully reviewed Ashby’s assertions, the record

materials, and the findings of fact. We agree with the Court of

Criminal Appeals that Lt. Gen. Pace took no actions equivalent

to directing that charges nominally be signed and sworn to by

another. Lt. Gen. Pace’s action in forwarding the CIB to the

servicing legal office for consideration of appropriate charges

was consistent with the performance of his duties as a

commander. We presume that the legal officers properly

performed their professional duties which included independent

review of the evidence and preparation of only those charges for

which they determined probable cause existed. See Article 34,

UCMJ, 10 U.S.C. § 834 (2000) (imposing a duty on the staff judge

advocate to prepare advice to the convening authority before a

charge is referred to a general court-martial); United States v.

Masusock, 1 C.M.A. 32, 35, 1 C.M.R. 32, 35 (1951) (citing the

presumption that a public officer charged with a particular duty

has performed it properly); United States v. Roland, 31 M.J.

747, 750 (A.C.M.R. 1990) (“We will presume, in the absence of

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United States v. Ashby, No. 08-0770/MC

evidence to the contrary, that the staff judge advocate properly

discharged his duties.”). In this light, Lt. Gen. Pace did

nothing to make him a nominal accuser. In addition, any claim

that he was a “type two” accuser is diminished in the case of

these particular charges, as they were not investigated by the

CIB, were not encompassed in Lt. Gen. Pace’s forwarding

endorsement to the CIB, and were independently preferred. Ashby

has failed to show any acts by Lt. Gen. Pace that would make him

a “type two” accuser.

Concerning Ashby’s claim that Lt. Gen. Pace was a “type

three” accuser, this record contains no evidence of personal

interest or bias on the part of Lt. Gen. Pace such that he was

transformed into a de facto accuser. Although Lt. Gen. Pace was

involved in the preliminary investigation of the case, his

interest appears to have been wholly official. Interest in an

incident and the investigation thereof is not personal -- it is

in fact the responsibility of a commander. Similarly, the

frequency of Lt. Gen. Pace’s contact with the CIB or the number

of times that he reviewed the draft CIB report do not reflect a

personal rather than a professional interest. Again, we note

that these charges stem from outside the CIB. Ashby has failed

to show that he is entitled to relief as to this issue.

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IX.

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE
CONVENING AUTHORITY DID NOT ABUSE HIS DISCRETION IN
FAILING TO WITHDRAW THE ARTICLE 133, UCMJ, CHARGE FROM
REFERRAL TO A GENERAL COURT-MARTIAL ONCE APPELLANT WAS
ACQUITTED OF THE ORIGINAL CHANGES.

In his final assignment of error, Ashby argues that, given

Lt. Gen. Pace’s personal involvement in the disposition of the

case, the media pressure surrounding it, and his acquittal on

the original charges, Lt. Gen. Pace’s referral of the Article

133, UCMJ, charges to a general court-martial was in bad faith

and constituted an abuse of discretion. The Government responds

that, considering that Ashby was a commissioned officer and that

the charges required significant investigations, the convening

authority’s decision to refer the case to a general court-

marital was not improper.

R.C.M. 306(b) provides that “[a]llegations of offenses

should be disposed of . . . at the lowest appropriate level of

disposition . . . .” However, under R.C.M. 306 and R.C.M. 407,

a convening authority exercising general court-martial

jurisdiction has wide discretion to choose among a variety of

options in disposing of a charge, including referring the

charges to a general court-martial. See R.C.M. 407; United

States v. Dinges, 55 M.J. 308, 314 (C.A.A.F. 2001) (discussing

the “virtually unfettered authority” of a commander exercising

special court-martial jurisdiction).

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We hold that the convening authority’s decision to refer

the Article 133, UCMJ, charge to a general court-martial, rather

than a lesser forum, was not an abuse of his discretion. As we

noted earlier, the matter of the destruction of the videotape

was discovered after the original charges had been referred, and

a separate charge alleging violations of Article 133, UCMJ, was

preferred. Lt. Gen. Pace directed that the Article 133, UCMJ,

charge be tried in conjunction with the original charge.

However, at his initial trial, Ashby refused to consent to the

joinder of the Article 133, UCMJ, charge, and Lt. Gen. Pace

withdrew it. Ashby was therefore aware that the Article 133,

UCMJ, specifications could later be separately referred -- and

they were.

Since the two Article 133, UCMJ, specifications were

initially referred before Ashby was acquitted on the original

charges, it is difficult to say that the re-referral of the

Article 133, UCMJ, charge was in any way retaliatory. Ashby’s

allegation of bad faith is unfounded. We conclude that Lt. Gen.

Pace acted within his discretion in referring the Article 133,

UCMJ, charges to a general court-martial, where Ashby was a

commissioned officer and the charges involved obstruction of

justice in an exhaustive investigation into the deaths of twenty

people and extensive damage to military property.

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United States v. Ashby, No. 08-0770/MC

DECISION

We affirm the decision of the United States Navy-Marine

Corps Court of Criminal Appeals.

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United States v. Ashby, No. 08-0770/MC

STUCKY, Judge (concurring):

I concur in the Court’s judgment, and in virtually all of

Judge Erdmann’s exhaustive opinion. I write separately only to

note my understanding of the discussion of Issue I, and to state

a reservation with respect to Issue VII.

With respect to Issue I, as the lead opinion notes, the

Government elected to incorporate the existing offenses of

obstruction of justice (Article 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 934 (1994)) and conspiracy to

obstruct justice (Article 81, UCMJ, 10 U.S.C. § 881 (1994)) into

the Article 133, UCMJ, 10 U.S.C. § 933 (1994), charge of conduct

unbecoming an officer and a gentleman. The military judge

instructed the members on the elements of those underlying

offenses, and the Court of Criminal Appeals analyzed the issue

of legal sufficiency in those terms. I do not understand the

lead opinion as holding that the military judge was required to

do as he did, but simply as applying the law of this case as we

found it. I wholly concur with the legal sufficiency analysis

of the lead opinion as it relates to the elements of the

underlying offenses.

With respect to Issue VII, consistent with the position I

took in United States v. Bush, I question the application of the

“public perception” standard of United States v. Toohey, 63 M.J.

353 (C.A.A.F. 2006) (Toohey II). See Bush, 68 M.J. 96, __ (1-8)
United States v. Ashby, No. 08-0770/MC

(C.A.A.F. 2009) (Ryan, J., with whom Stucky, J., joined,

concurring in the judgment). However, I completely agree with

the lead opinion’s holding that Appellant has not made the

requisite showing of prejudice under Barker v. Wingo, 407 U.S.

514, 530 (1972). I therefore concur.

2