United States v. Schweitzer

UNITED STATES, Appellee

v.

Joseph P. SCHWEITZER, Captain
U.S. Marine Corps, Appellant

No. 08-0746
Crim. App. No. 200000755

United States Court of Appeals for the Armed Forces

Argued June 24, 2009

Decided August 31, 2009

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

Counsel

For Appellant: Mary T. Hall, Esq. (argued); Lieutenant Heather
L. Cassidy, JAGC, USN (on brief).

For Appellee: Major Elizabeth A. Harvey, USMC (argued); Colonel
Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on brief).

Military Judges: A. W. Keller and R. E. Nunley

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Schweitzer, No. 08-0746/MC

Judge STUCKY delivered the opinion of the Court.1

Appellant was one of three electronic countermeasures

officers aboard a Marine Corps aircraft piloted by Captain

(Capt) Richard J. Ashby on February 3, 1998, that severed two

weight-bearing suspension cables of the Alpe Cermis cable car

system, near Cavalese, Italy, causing one of the system’s

gondolas to plummet to the ground, killing its twenty civilian

passengers. As a result of Appellant’s subsequent actions in

destroying a videotape taken during that flight, Appellant pled

guilty to two specifications of conduct unbecoming an officer in

violation of Article 133, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 933 (1994).

We granted review of four issues in this case: (1) whether

Appellant’s unconditional guilty plea preserved for appeal his

motion to dismiss alleging the convening authority was the

accuser; (2) whether Appellant’s guilty plea to conduct

unbecoming an officer by obstructing justice is provident when

it concerned the obstruction of a foreign criminal

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, 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)(1)(A)(iii), UCMJ, 10 U.S.C. § 942(e)(1)(A)(iii)
(2006).

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investigation; (3) whether this Court’s decision in United

States v. Allende, 66 M.J. 142 (C.A.A.F. 2008),

unconstitutionally shifted the burden to the defense to

establish that a due process violation in the post-trial

processing of his case was not harmless beyond a reasonable

doubt; and (4) whether the lower court abused its discretion by

failing to grant sentence relief after admitting “gross

negligence” in failing to provide expeditious review of

Appellant’s appeal. For the reasons that follow, we affirm.

I.

During the ill-fated flight, Appellant was stationed in the

front cockpit with Capt Ashby. He used Capt Ashby’s video

camera to record scenic footage of the Italian Alps during the

flight. The other two Marine Corps officers were in the rear

cockpit.

Because of damage the aircraft suffered as a result of

severing the suspension cables, Capt Ashby was forced to make a

“no flaps, no slats arrested emergency landing” at a North

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

to the danger of fire and explosion, and in compliance with

applicable procedures, the two Marine Corps officers in the rear

cockpit immediately left the plane. However, before exiting

themselves, Appellant said to Capt Ashby, “Let’s take the tape.”

Capt Ashby agreed and substituted a blank videotape for the

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videotape recorded during the flight. Capt Ashby then took the

videotape containing the flight recording with him when he

exited the plane. The two officers left the video recorder with

the blank tape in the plane, knowing that it would be seized by

personnel investigating the mishap.

Shortly after the incident, then-Lieutenant General (LtGen)

Peter Pace, the Commander United States Marine Forces Atlantic,

and Commander, United States Marine Forces Europe, convened a

command investigation board to determine the cause of the

incident, and the Italian Government began a formal criminal

investigation that included the appointment of counsel for

Appellant and was closely monitored by United States military

investigators. After Appellant and Capt Ashby learned of the

Italian criminal investigation, they solicited the advice of a

third member of the flight, Capt Seagraves, on what to do with

the tape. Capt Seagraves advised them to “get rid of it.”

After this conversation, Appellant asked Capt Ashby to give him

the videotape so he could destroy it. Appellant threw the

videotape into a bonfire behind a bar, knowing that Italian and

United States military criminal investigators would have wanted

to view it.

On March 24, 1998, Gunnery Sergeant (GySgt) Michael J.

Ciarlo preferred charges against Appellant and Capt Ashby,

including twenty specifications alleging involuntary

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manslaughter for each of the twenty gondola passengers who died

in the incident. LtGen Pace referred these charges to a general

court-martial, on July 10, 1998, pursuant to his role as

convening authority.

On August 28, 1998, GySgt Ciarlo preferred one additional

charge composed of two specifications against both Capt Ashby

and Appellant: conduct unbecoming an officer by conspiring with

each other to obstruct justice by secreting a videotape from the

cockpit and destroying it; and obstruction of justice based on

these same acts, in violation of Article 133, UCMJ. On

September 21, 1998, LtGen Pace referred the additional charge to

general court-martial to be tried with the charges referred on

July 10, 1998. Capt Ashby was acquitted of all of the initial

charges, but as he had refused to consent to joinder of the

additional and initial charges, he was tried and convicted

separately of the conduct unbecoming offenses. As a result of

Capt Ashby’s acquittal of the initial charges, the convening

authority withdrew all charges against Appellant, except for the

conduct unbecoming specifications.

Pursuant to a pretrial agreement requiring the convening

authority to disapprove any adjudged confinement, Appellant pled

guilty, by exceptions and substitutions, to the charge and its

two specifications. The military judge accepted Appellant’s

pleas and officer members sentenced Appellant to a dismissal.

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The convening authority approved the findings and sentence. The

United States Navy-Marine Corps Court of Criminal Appeals (CCA)

remanded for either a hearing to determine whether the staff

judge advocate was disqualified or, in the alternative, for a

new staff judge advocate’s recommendation (SJAR) and a new

convening authority action. United States v. Schweitzer

(Schweitzer I), 2007 CCA LEXIS 164, at *99-*100, 2007 WL

1704165, at *33-*34 (N-M. Ct. Crim. App. May 10, 2007)

(unpublished). After a new SJAR by a different SJA, the

convening authority again approved the adjudged sentence, and

the CCA affirmed in a second opinion. United States v.

Schweitzer (Schweitzer II), No. 200000755, slip op. at 2, 4 (N-

M. Ct. Crim. App. Jun. 5, 2008) (unpublished).

II.

At trial, both Appellant and Capt Ashby moved to dismiss

the charges, alleging that LtGen Pace was an “accuser” under

Article 1(9), UCMJ, 10 U.S.C. § 801(9) (1994),2 such as to

disqualify him from referring the charges to a court-martial

under Article 22, UCMJ, 10 U.S.C. § 822 (1994). The military

2
It was asserted that LtGen Pace was either a type-two accuser
(“a person who directs that charges nominally be signed and
sworn to by another”) or a type-three accuser (a “person who has
an interest other than an official interest in the prosecution
of the accused”). Article 1(9), UCMJ.

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judge ruled, during a joint session, that LtGen Pace was not an

accuser in these cases.

On appeal before the CCA, Appellant alleged that the

military judge erred by refusing to grant the motion to dismiss.

The CCA held that Appellant’s unconditional guilty plea waived

the issue. Schweitzer I, 2007 CCA LEXIS 164, at *10-*11, 2007

WL 1704165, at *3. Citing Rule for Courts-Martial (R.C.M.)

910(j), Appellant asserts before this Court that his guilty plea

did not waive the issue, as a right to an impartial convening

authority is a “bedrock of military due process.”

R.C.M. 910(j) provides a bright-line rule -- an

unconditional guilty plea “which results in a finding of guilty

waives any objection, whether or not previously raised, insofar

as the objection relates to the factual issue of guilt of the

offense(s) to which the plea was made.” “The point . . . is

that a counseled plea of guilty is an admission of factual guilt

so reliable that, where voluntary and intelligent, it quite

validly removes the issue of factual guilt from the case.”

Menna v. New York, 423 U.S. 61, 62 n.2 (1975).

Objections that do not relate to factual issues of guilt

are not covered by this bright-line rule, but the general

principle still applies: An unconditional guilty plea generally

“waives all defects which are neither jurisdictional nor a

deprivation of due process of law.” United States v. Rehorn, 9

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C.M.A. 487, 488-89, 26 C.M.R. 267, 268-69 (1958) (finding a

guilty plea waived failure to provide an accused with certified

counsel for his Article 32, UCMJ, hearing). Nevertheless this

Court has found on occasion that an unconditional guilty plea by

itself does not waive an objection on appeal to a nonfactual

issue. See, e.g., United States v. Pauling, 60 M.J. 91, 94

(C.A.A.F. 2004) (unconditional guilty plea does not waive a

multiplicity objection if the specifications are “facially

duplicative”); United States v. Pratchard, 61 M.J. 279, 280

(C.A.A.F. 2005) (guilty plea does not waive speedy trial

objection under Article 10, UCMJ, 10 U.S.C. § 810 (2000) (citing

United States v. Mizgala, 61 M.J. 122 (C.A.A.F. 2005))); United

States v. Boyett, 42 M.J. 150, 152 (C.A.A.F. 1995) (“guilty plea

does not waive the defect of a specification that fails to state

an offense”).

As long as the individual who convenes the court-martial is

one of the persons described by statute as having such

authority, see Articles 22(a) or 23(a), UCMJ, the

disqualification of the convening authority under Articles 22(b)

or 23(b), UCMJ, for being an accuser under Article 1(9), UCMJ,

does not deprive the court-martial of jurisdiction. United

States v. Ridley, 22 M.J. 43, 47-48 (C.M.A. 1986); see also

United States v. Shiner, 40 M.J. 155, 157 (C.M.A. 1994); United

States v. Jeter, 35 M.J. 442, 446-47 (C.M.A. 1992). LtGen Pace

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was authorized under Article 22(a), UCMJ, to convene Appellant’s

court-martial. Therefore, any error would be nonjurisdictional.

After losing his motion at trial to disqualify LtGen Pace,

Appellant pled guilty pursuant to a pretrial agreement that he

had negotiated with the one and the same LtGen Pace. As part of

Appellant’s providence inquiry, the military judge stated:

Captain Schweitzer, by your pleas of guilty, you also
give up your right to appeal the decisions, not only
that I made, but the decisions that were made by [the
military judge] during the joint motion session of this
trial. By your plea of guilty, you waive all motions
with the exception of motions regarding multiplicity;
motions involving jurisdictional issues; and, as far as
the guilty plea is concerned, unlawful command influence,
selective prosecution, or ineffectiveness of counsel.
All other motions are waived.”

Appellant explicitly acknowledged understanding this consequence

of his guilty plea and agreed to give up his right to appeal

those issues. Under these circumstances, Appellant waived his

objection to LtGen Pace acting as the convening authority in his

case, and it may not be raised on appeal. See United States v.

Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009).

III.

The specifications upon which Appellant was tried alleged

conduct unbecoming an officer by (1) conspiring to obstruct

justice by endeavoring to impede an investigation by removing

the recorded videotape from the cockpit of the aircraft and

soliciting the support of another officer in secreting and/or

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destroying the videotape, and (2) obstructing justice by

endeavoring to impede an investigation by secreting or

destroying the videotape. In accordance with his pretrial

agreement, Appellant pled guilty to both specifications by

exceptions and substitutions. The major changes involved

amending the word “investigation” in both specifications to read

“a criminal investigation by Italian authorities.” Appellant

now claims his pleas were improvident, asserting that there is

no basis in military jurisprudence to find that impeding a

foreign criminal investigation is conduct unbecoming an officer,

and Appellant was not on notice that impeding “Italian justice

could form the basis for a violation of Article 133.” We

disagree.

Once a military judge has accepted an accused’s guilty

pleas and entered findings of guilty, this Court will not set

them aside unless we find a substantial basis in law or fact for

questioning the plea. United States v. Inabinette, 66 M.J. 320,

322 (C.A.A.F. 2008).

Article 133, UCMJ, provides as follows: “Any commissioned

officer, cadet, or midshipman who is convicted of conduct

unbecoming an officer and a gentleman shall be punished as a

court-martial may direct.” There are two elements to this

offense:

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(1) That the accused did or omitted to do certain
acts; and

(2) That, under the circumstances, these acts or
omissions constituted conduct unbecoming an officer
and gentleman.

United States v. Forney, 67 M.J. 271, 278 (C.A.A.F. 2009)

(quoting Manual for Courts-Martial, United States pt. IV, para.

59.b (2008 ed.).

An officer’s conduct need not violate other provisions of

the UCMJ or even be otherwise criminal to violate Article 133,

UCMJ. The gravamen of the offense is that the officer’s conduct

disgraces him personally or brings dishonor to the military

profession such as to affect “his fitness to command the

obedience of his subordinates so as to successfully complete the

military mission.” Id. at 275. “‘Clearly, then, the

appropriate standard for assessing criminality under Article 133

is whether the conduct or act charged is dishonorable and

compromising as hereinbefore spelled out -- this notwithstanding

whether or not the act otherwise amounts to a crime.’” Id.

(quoting United States v. Giordano, 15 C.M.A. 163, 168, 35

C.M.R. 135, 140 (1964)).

Appellant admitted knowing that he was obstructing justice

by destroying a videotape he knew would have been of significant

interest to Italian criminal authorities investigating the death

of twenty persons, and that such conduct was wrong. His

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admissions were sufficient to establish that his conduct was

unbecoming an officer -- it was dishonorable, disgraced him

personally, and compromised his fitness to command the obedience

of his subordinates so as to successfully complete the military

mission. Furthermore, there is nothing in the record to suggest

that Appellant was not on notice that such conduct was

unbecoming an officer, and he never made such a claim at trial.

There is no substantial basis in law or fact for setting aside

Appellant’s guilty pleas. Inabinette, 66 M.J. at 322; United

States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).

IV.

The CCA held, sua sponte, that the eight-year delay from

the announcement of Appellant’s sentence until the CCA issued

its original opinion in this case denied Appellant his due

process right to speedy review and appeal because it was caused

by “gross negligence and lack of institutional vigilance,” and

“tolerating it would adversely affect the public’s perception of

the fairness and integrity of the military justice system.”

Schweitzer I, 2007 CCA LEXIS 164, at *96-*97, 2007 WL 1704165,

at *32. Nevertheless, the CCA found this error harmless beyond

a reasonable doubt based on Appellant’s guilty pleas, the

approved sentence, Appellant’s failure to assert the denial of

speedy review and appeal, and Appellant’s failure to prevail on

appeal. Id. at *97-*98, 2007 WL 1704165, at *33.

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Appellant asserted that the delay had caused him difficulty

in finding adequate employment. His affidavit stated that he

has averaged less than $35,000 a year in annual income since he

began his appellate leave, even though Appellant earned a master

of business administrative degree in 2004, and the positions for

which Appellant interviewed paid between $79,000 and $95,000.

The CCA held that Appellant’s affidavit amounted to speculation

that “falls far short of providing sufficient detail to permit

the Government to reasonably address the appellant’s claims.”

Schweitzer II, slip op. at 4 (citing United States v. Allende,

66 M.J. 142 (C.A.A.F. 2008)). The CCA affirmed its previous

decision that the egregious post-trial delay was harmless beyond

a reasonable doubt. Id.

Appellant complains that this Court’s decision in Allende

improperly shifted the burden to Appellant to establish that he

was harmed by the delay. This argument was rejected in our

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

2009), which is controlling.

“[C]onvicted servicemembers have a due process right to

timely review and appeal of courts-martial convictions.” United

States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). To rebut a

due process violation “the Government must show that this error

was harmless beyond a reasonable doubt.” United States v.

Gosser, 64 M.J. 93, 99 (C.A.A.F. 2006) (citations omitted).

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In Allende, the appellant asserted that he had lost

employment opportunities when he was unable to show potential

employers a DD-214, Certificate of Release or Discharge from

Active Duty. We assumed the delay amounted to a due process

violation but concluded that the error was harmless beyond a

reasonable doubt. We noted that the appellant had not provided

documentation from potential employers regarding their

employment practices, nor had he otherwise demonstrated a valid

reason for failing to do so. Allende, 66 M.J. at 145.

This Court did not shift the burden to the appellant to

establish that he was harmed by the delay in the review and

appeal of his case. The burden remained on the Government to

prove the constitutional error was harmless beyond a reasonable

doubt under the totality of the circumstances. The Court merely

recognized that where the appellant has not suffered any

prejudice under the fourth prong of the Moreno speedy review and

appeal test -- ongoing prejudice in the form of oppressive

incarceration, undue anxiety, or the impairment of the ability

to prevail in a retrial -- “the Government may more readily

demonstrate that any error is harmless beyond a reasonable

doubt.” Bush, 68 M.J. at __ (19).

Appellant’s situation is the same. There is no evidence he

suffered any prejudice as defined in prong four of Moreno. 63

M.J. at 138-41. The CCA employed the correct standard -- the

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totality of the circumstances -- in determining that the due

process violation was harmless beyond a reasonable doubt.

Schweitzer I, 2007 CCA LEXIS 164, at *97, 2007 WL 1704165, at

*33.

V.

Appellant’s final claim is that the CCA abused its

discretion by failing to grant him discretionary relief under

Article 66(c), UCMJ, because of the gross negligence in

processing the review and appeal of his case. He further

alleges that, after promising to do so in Schweitzer I, the CCA

failed to consider discretionary relief in Schweitzer II.

A Court of Criminal Appeals “may affirm only . . . the

sentence or such part or amount of the sentence, as it finds

correct in law and fact and determines, on the basis of the

entire record, should be approved.” Article 66(c), UCMJ, 10

U.S.C. § 866(c) (2000). Although deeply divided, this Court has

held that Courts of Criminal Appeals have “authority under

Article 66(c) to grant relief for excessive post-trial delay

without a showing of ‘actual prejudice’ within the meaning of

Article 59(a)[, 10 U.S.C. § 859(a) (2000),] if it deems relief

appropriate under the circumstances.” United States v. Tardif,

57 M.J. 219, 224 (C.A.A.F. 2002) (quoting United States v.

Collazo, 53 M.J. 721, 727 (A. Ct. Crim. App. 2000). We further

held that “the court below was required to determine what

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findings and sentence ‘should be approved,’ based on all the

facts and circumstances reflected in the record, including the

unexplained and unreasonable post-trial delay.” Id.

In Schweitzer I, the CCA stated that, after the remand, it

would consider whether discretionary relief was warranted for

the post-trial delay. 2007 CCA LEXIS 164, at *98, 2007 WL

1704165, at *33. Appellant complains that the CCA should have

granted him discretionary relief and there is no evidence in

Schweitzer II that it even considered it.

In the absence of evidence to the contrary, judges of the

Courts of Criminal Appeals are presumed to know the law and to

follow it. United States v. Mason, 45 M.J. 483, 484 (C.A.A.F.

1997). The CCA acknowledged in Schweitzer I its duty to

consider discretionary relief when the case returned from

remand. 2007 CCA LEXIS 164, at *98, 2007 WL 1704165, at *33.

We find no reason to doubt that the panel considered

discretionary relief before affirming Appellant’s sentence.3

Furthermore, after considering the totality of circumstances, we

conclude that the CCA did not abuse its discretion in not

granting discretionary relief.

3
Two of the three judges who agreed to perform discretionary
review when the case returned from remand, including the judge
who wrote Schweitzer I, were on the panel that decided
Schweitzer II.

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VI. Decision

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.

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