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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United States v. Schweitzer, No. 08-0746/MC
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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United States v. Schweitzer, No. 08-0746/MC
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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United States v. Schweitzer, No. 08-0746/MC
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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United States v. Schweitzer, No. 08-0746/MC
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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United States v. Schweitzer, No. 08-0746/MC
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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United States v. Schweitzer, No. 08-0746/MC
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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United States v. Schweitzer, No. 08-0746/MC
(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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United States v. Schweitzer, No. 08-0746/MC
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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United States v. Schweitzer, No. 08-0746/MC
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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United States v. Schweitzer, No. 08-0746/MC
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.
17