United States v. Gore

IN THE CASE OF

UNITED STATES, Appellee

v.

Rico S. GORE, Equipment Operator Constructionman
U.S. Navy, Appellant

No. 03-6003

Crim. App. No. 200300348

United States Court of Appeals for the Armed Forces

Argued December 9, 2003

Decided August 18, 2004

GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.

Counsel

For Appellant: Lieutenant Colin A. Kisor, JAGC, USNR (argued);
Lieutenant Marcus N. Fulton, JAGC, USN (on brief).

For Appellee: Major Raymond E. Beal, II, USMC (argued);
Commander R. P. Taishoff, JAGC, USN (on brief); Lieutenant Frank
L. Gatto, JAGC, USN.

Military Judge: John A. Maksym

This opinion is subject to editorial correction before final publication.
United States v. Gore, No. 03-6003/NA

Judge GIERKE delivered the opinion of the Court.

Article 37(a) Uniform Code of Military Justice [hereinafter

UCMJ], 10 U.S.C. § 837(a) (2000), prohibits unlawful command

influence by all persons subject to the UCMJ. Unlawful command

influence is recognized as “the mortal enemy of military

justice.” United States v. Thomas, 22 M.J. 388, 393 (C.M.A.

1986). This case concerns unlawful command influence by a

commanding officer who ordered a senior enlisted Chief petty

officer not to testify in support of Appellant and may have

deterred others at the command from testifying on behalf of

Appellant. As a remedy for the unlawful command influence, the

military judge ordered the charges dismissed with prejudice.

The Government filed an interlocutory appeal of the ruling of

the military judge. The lower court also found unlawful command

influence but disagreed with the military judge’s remedy. We

granted review of two issues but focus on whether the military

judge abused his discretion in the remedy he imposed because of

the unlawful command influence. In resolving this issue, we

address the nature and effect of the unlawful command influence

and the alternative remedies available to address it.

The granted issues are:

I.
WHETHER, HAVING FOUND UNLAWFUL COMMAND INFLUENCE, THE
MILITARY JUDGE ABUSED HIS DISCRETION IN DISMISSING THE
CASE WITH PREJUDICE.

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II.
WHETHER THE LOWER COURT ERRED BY ENGAGING IN
IMPERMISSIBLE FACT-FINDING WHEN RULING ON THE
GOVERNMENT’S APPEAL PURSUANT TO ARTICLE 62, UCMJ, 10
U.S.C. § 862 (2000).

For the reasons set out below, we reverse the decision of

the Court of Criminal Appeals (CCA).

I. PROCEDURAL POSTURE OF THE CASE

Appellant, an Equipment Operator Constructionman, was

assigned to U.S. Naval Mobile Construction Battalion ONE-THIRTY-

THREE located at Gulfport, Mississippi. Appellant was charged

with two specifications of desertion and one specification of

unauthorized absence, in violation of Articles 85 and 86, UCMJ,

10 U.S.C. §§ 885 and 886 (2000), respectively. Appellant was

placed in pretrial confinement on September 3, 2002, and charges

were preferred and referred to a special court-martial on

September 10, 2002.

On September 19, Appellant was arraigned, but the court

recessed until November. Before the trial resumed, Appellant

and the convening authority (CA) entered into a pretrial

agreement. In preparation for the anticipated sentencing phase

of the court-martial, trial defense counsel attempted to obtain

character witnesses from Appellant’s unit but was thwarted by

unlawful command influence by the CA. On November 21 at an

Article 39(a), UCMJ, 10 U.S.C. § 839(a)(2000) session, defense

counsel moved for dismissal of the charges due to unlawful

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command influence, and the military judge granted the motion to

dismiss with prejudice.

Pursuant to Article 62, UCMJ, 10 U.S.C. § 862 (2000), the

Government appealed to the CCA. Initially, the CCA remanded the

case to the military judge with instructions to “prepare

detailed and complete findings of fact and conclusions of law

concerning his decision to dismiss this case with prejudice[.]”

United States v. Gore, NMCM No. 200202409, slip op. at 2 (N-M.

Ct. Crim. App. Jan. 15, 2003). The military judge complied with

the CCA’s order. The military judge’s second findings of fact

and his conclusions of law are restated in the lower court

opinion. United States v. Gore, 58 M.J. 776, 778-84 (N-M. Ct.

Crim. App. 2003).*

Upon further review, the CCA agreed with the military judge

that there was unlawful command influence, but concluded that

the military judge abused his discretion in fashioning a remedy.

The lower court issued an opinion ordering that the case be

remanded to the military judge to “select an appropriate remedy,

short of dismissal of the charges.” Id. at 788. This remand

order was not executed as this Court granted Appellant’s

petition for grant of review under Article 67(a)(3), UCMJ, 10

U.S.C. § 867(a)(3)(2000).

*
It should be noted that the events related to the unlawful
command influence occurred in the month of November rather than
September 2002.

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Facts Relating to Unlawful Command Influence

The relevant events were presented through the testimony of

the witnesses during the evidentiary hearing on the motion to

dismiss. As previously noted, Appellant’s unit was located at

Gulfport, Mississippi. For reasons that are not stated in the

record, the court-martial was convened at Naval Air Station,

Pensacola, Florida. As the detailed defense counsel, Lieutenant

Brian Maye, was stationed in Gulfport, he and any witnesses from

Appellant’s command were required to travel to Pensacola for the

trial.

Anticipating Appellant’s guilty plea pursuant to the signed

pretrial agreement, defense counsel worked to prepare a

sentencing case for Appellant. On November 18, three days

before the trial was scheduled to resume, Lieutenant Maye went

to Appellant’s unit to obtain possible defense witnesses.

Lieutenant Maye testified that he wanted to identify individuals

who would fill out questionnaires detailing support of

Appellant. Lieutenant Maye sought out Equipment Operator Chief

E-7 (Chief) Metheny in particular, as Appellant “wanted Chief

Metheny to assist in our defense.”

Lieutenant Maye testified that he did not believe that he

needed authority from the commanding officer to seek out defense

witnesses from members of the command. He testified that his

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going on base was “standard practice” and had “never been

discouraged.” Lieutenant Maye explained, “In Gulfport, the JAG

attorneys . . . wear two hats. We are defense attorneys. Also

we are legal assistance attorneys. So it’s very common for us

to go over to the spaces. We are frequently over to those

spaces.”

When Lieutenant Maye could not locate Chief Metheny, he

left but returned the next day and made contact with him.

Lieutenant Maye testified that they proceeded to Chief Metheny’s

office where defense counsel gave him six character witness

questionnaires and Chief Metheny “immediately said, ‘Well, I’ll

testify. Do you need me to testify? I’ll testify.’”

Accepting this offer, they discussed travel plans for the Chief

to be a witness at the court-martial and the general substance

of Chief Metheny’s expected testimony on behalf of Appellant.

Lieutenant Maye testified that Chief Metheny told him that “he

thought [Appellant] was a really nice guy. And he said he

thinks that [Appellant] should be retained.”

Lieutenant Maye also testified that Chief Metheny agreed to

distribute questionnaires to other senior enlisted personnel

that he believed would also testify in support of Appellant.

Chief Metheny stated that others in the command felt the same

way about Appellant. Chief Metheny agreed with Lieutenant Maye

that Chief Smith would say some positive things about Appellant.

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Chief Metheny also specifically identified two other persons who

would fill out questionnaires and also provide positive

information. At the end of the conversation, Chief Metheny told

defense counsel, “Come back tomorrow and I’ll have the . . .

character witness questionnaires for you.” Lieutenant Maye

testified that they concluded the conversation with Chief

Metheny stating, “In the meantime, I’ll go talk to my CO, my

skipper.” Immediately after this conversation Chief Metheny

contacted and briefed his commanding officer, Commander Morton,

about testifying.

On the afternoon of November 20, the day before trial,

defense counsel returned to Appellant’s command because he “was

surprised that Chief Metheny hadn’t contacted me, hadn’t come

over and dropped off the questionnaires.” Lieutenant Maye

testified that as he walked onto the command quarterdeck, Chief

Metheny met him and informed him, “I can’t help you, Lieutenant

. . . I’m not testifying . . . . My skipper said no way. He

said that I can’t help Constructionman Gore.” Also Chief

Metheny refused to testify telephonically. When asked about the

questionnaires, defense counsel testified that Chief Metheny

said, “Lieutenant, my CO said we cannot help Constructionman

Gore. End of story.” As the two parted, Chief Metheny yelled

out, “Hey Lieutenant, this is between me and you.”

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Lieutenant Maye left the command but shortly returned,

accompanied by his officer-in-charge, Lieutenant Weber.

Lieutenant Maye sought to arrange a second meeting with Chief

Metheny and to have Chief Metheny repeat his statements in the

presence of Lieutenant Weber. Defense counsel and Lieutenant

Weber discussed with Chief Metheny his basis for refusing to

testify. Chief Metheny stated that neither he, nor anyone else

in his command, would testify on behalf of Appellant in light of

the order by the commanding officer, Commander Morton. Chief

Metheny “alluded to negative ramifications that would stem from

testifying and terminated the meeting . . . .” He reinforced

this point when he grabbed his collar device and stated that he

attained his present grade of chief in 11 years when he was

expected to make it in 16 years and that one gets ahead by not

bucking the system. Lieutenant Maye’s further contacts with

Appellant’s command resulted in his being informed that Chief

Metheny would be in Pensacola the next day to testify. Although

Lieutenant Maye thought the command may have resolved the

problem and that Chief Metheny would testify favorably for the

defense as he had initially indicated he would, Lieutenant Maye

proceeded to prepare to raise the command influence issue at the

court-martial.

Based on these developments, on the evening of November 20

trial defense counsel prepared a Motion to Dismiss due to

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unlawful command influence and informed trial counsel of this

issue. Having traveled to Pensacola the next morning, trial

defense counsel and trial counsel informed the military judge of

the potential command influence issue.

However, as Chief Metheny was also present in Pensacola and

available as a witness, Lieutenant Maye met with him to discuss

his testimony. Here again, Chief Metheny informed defense

counsel that he could not help the defense. Defense counsel

testified that Chief Metheny said, “Lieutenant, I’m here. The

CO told me to be here, but I’m not going to be any help to you.

The CO told me to to[e] the line and that’s what I’m doing. I’m

not testifying.” Chief Metheny further stated that the accused

was going to be released within 30 days and the accused was not

worth risking his career. He conceded that the commanding

officer did exert pressure over his prospective testimony.

Lieutenant Maye also testified that Chief Metheny told him that

“he had to recognize that the Commanding Officer authorized his

fitness reports.” Lieutenant Maye testified that Chief Metheny

also said “Even if the CO is exposed, he’s going to get a slap

on the wrist. He’s . . . either going to make Captain or he’s a

Captain-select. That’s the way it works, Lieutenant.”

Finally, Lieutenant Maye testified that Chief Metheny stated

that the commanding officer had called him on the telephone the

night before trial and told him “You’re going to Pensacola and

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you know what the . . . command’s position is on this matter.”

According to Lieutenant Maye, Chief Metheny said that if he did

testify that he would “testify consistent with the command’s

wishes.” Chief Metheny informed Lieutenant Maye that there

would be repercussions if he testified in support of Appellant.

Chief Metheny did not state that the commanding officer

threatened that, rather, he indicated that he believed he “would

never make Senior [Chief]” if he testified. Lieutenant Maye

testified that in a final conversation, shortly before the

court-martial began, Chief Metheny stated that he had “a family

to protect . . .[and he is] going to say exactly what the

command wants [him] to say.”

In light of these statements by Chief Metheny, in the late

morning of November 21, defense counsel filed the motion with

the court-martial. In the afternoon of November 21, the court-

martial reconvened to litigate the defense motion to dismiss on

the basis of unlawful command influence.

Since original detailed defense counsel, Lieutenant Maye,

was now a witness for Appellant, substitute defense counsel

argued the motion at the special court-martial. Initially

Lieutenant Maye provided all of the previously detailed

testimony as to his prior contacts with Chief Metheny both at

the command in Gulfport and the morning of trial in Pensacola.

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Following the testimony of the original defense counsel,

the defense called Chief Metheny as a witness. He testified

that he had minimum contact with the Appellant who served in his

platoon for less than two weeks prior to his alleged

unauthorized absence. Chief Metheny disclosed that he also had

been the command representative for a brig visit with Appellant

earlier in November but otherwise denied personally knowing

Appellant.

Immediately thereafter, Chief Metheny denied telling

Lieutenant Maye that he would be willing to testify at the

court-marital as a character witness on behalf of Appellant. He

also denied volunteering to testify on behalf of Appellant.

Chief Metheny stated his personal view that he had seen a lot

worse stay in the Navy, but he reaffirmed that he had nothing

positive to say as a professional opinion about Appellant.

Chief Metheny did confirm that he agreed to distribute the

defense questionnaires to others in the command who may be able

to fill them out, but explained that he “hadn’t gotten around to

it . . . .” Chief Metheny could not recall Lieutenant Maye

asking him about testifying electronically. Also, Chief Metheny

denied discussing with Lieutenant Maye and Lieutenant Weber the

prospect of appearing as a defense witness at the trial. He

denied any knowledge even of being a witness, but explained his

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presence at the court-martial as a possible command

representative.

At this point, Chief Metheny testified as to his

conversations with his commanding officer. He explained that

when he met with him, the commanding officer told him that his

presence was not required at the court-martial. Chief Metheny

testified that the commanding officer viewed the trial as a

“done deal” and that the result “was already predetermined.”

Chief Metheny denied that the commanding officer “had said that

no one should help [Appellant].”

Chief Metheny also disclosed that he had a chance meeting

with the commanding officer at the command the day before the

trial, in which the commanding officer expressed concerns “about

the inappropriateness of the Lieutenant [Maye] coming into the

command and not checking in with the [executive officer].” The

commanding officer stated that he wanted Chief Metheny to attend

the court-martial.

Regarding his conversation with Lieutenant Maye the morning

of trial, Chief Metheny made repeated denials that contradicted

the testimony of Lieutenant Maye. Chief Metheny denied that he

had said the commanding officer had told him to “to[e] the line”

or that he had stated that if he testified for Appellant he

would never make senior chief. He also denied telling

Lieutenant Maye that the commanding officer had called him to

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discuss the case. He denied telling Lieutenant Maye that he was

going to say what the command wanted him to say. Finally, he

denied that the commanding officer in any way tried to affect

his testimony, told him not to testify on behalf of Appellant,

or told him not to help Appellant.

Next, Lieutenant Weber testified as a defense witness.

Lieutenant Weber testified that he sat in on the second meeting

with Lieutenant Maye and Chief Metheny, and that they discussed

whether Chief Metheny was going to be a witness for Appellant

during sentencing. He corroborated the testimony of Lieutenant

Maye. He testified that Chief Metheny expressed hesitation

about testifying as a defense character witness for Appellant

because of his concern about “his status in the command . . .

[and] his promotion.” He stated that “the CO told [Chief

Metheny] that he [Chief Metheny] was not going to testify.”

Lieutenant Weber also testified that Chief Metheny stated that

the commanding officer said that “nobody from the command was

going to either testify or fill out any of the client witness

questionnaires.” Lieutenant Weber stated that his understanding

of the conversation between Chief Metheny and his commanding

officer was that Chief Metheny “said, ‘Hey I’m going to testify.

I’m going to be in Pensacola. Anything you need me to do?’ And

my understanding is that the CO said, ‘You’re not going.’ And

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the Chief’s response was, ‘Roger that.’ And that was the end of

the conversation.”

Lieutenant Weber stated that he was “in shock basically as

to what was going on.” Lieutenant Weber testified, “And I said,

‘Chief, are you serious? Is this going to have a consequence on

your - your promotion?’ And his response to me was, ‘How long

have you been in the Navy?’” Lieutenant Weber explained that

Chief Metheny “also showed me his collar device and said, ‘I

received this in 11 years. It takes usually people in my rate

16 years. I got this by sitting back and watching how things

work.’ And he said that he’s seen a lot of people try to do the

right thing and get burned by it.”

After the testimony of these three witnesses, the defense

rested. The military judge at this point stated, “As a matter

of law, the court finds that the defense has more, by a rather

exceeding level, met its burden under United States [v.]

Biagase, 50 M.J. 143 [C.A.A.F. 1999]. And it is now incumbent

upon the government to illustrate beyond a reasonable doubt that

there was not unlawful command influence in this case.” After a

brief recess, the prosecution called the CA, Commander Douglas

G. Morton, CEC, U.S. Navy, to testify.

Contrary to Lieutenant Weber’s testimony, Commander Morton,

testified that he did not try to influence Chief Metheny’s

testimony. He testified that he “was taken aback by [defense

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counsel] coming in my spaces, approaching one of my Chiefs

without my knowledge, and asking them or ordering them to come

to Pensacola [to testify]. So, I told the Chief I didn’t want

him to go to Pensacola, and . . . that was all there was to it.”

He further stated that he was “disturbed” and “really offended”

that defense counsel did not approach him, the executive

officer, or any command administrative staff prior to speaking

with Chief Metheny, particularly since he had already entered

into a pretrial agreement with Appellant. Commander Morton

stated that he told Chief Metheny that he was “angry that

Lieutenant Maye would come into my spaces.”

Commander Morton stated, “I was really offended I guess,

above all else, that somebody could come in and take one of my

people away without my knowledge. So I told the Chief, ‘You’re

not going to go.’” Commander Morton explained that the

conversation with Chief Metheny arose because the Chief was

advising him that he would be absent from work. Commander

Morton testified that his was an “operational unit, ready to

deploy” and he and other command members were missing “a very

important meeting with our superior discussing our combat

readiness to be here.” He explained that it “bothered” him that

the “request directing to my subordinate . . . was made without

any knowledge of the impact to my command.”

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Commander Morton testified that he was confused and unaware

that Appellant would need to have witnesses speak on his behalf

at sentencing. He explained that “nobody had made me aware of a

need to have anybody speak on [Appellant’s] behalf.” He

testified that he had briefly discussed with Chief Metheny the

facts of Appellant’s offenses and the terms of the pretrial

agreement. He testified that he told Chief Metheny the case was

a “done deal.” Commander Morton explained that he had “never

been in this position to see what a special court actually does.

And I thought it was a foregone conclusion that once the

[pretrial] agreement was signed [that the case was settled.]”

Commander Morton denied that he had any motivation to

prevent Appellant from getting witnesses to speak on his behalf.

He asserted that he did not understand that Chief Metheny was

going to be a defense witness because he asserted Chief Metheny

barely knew Appellant and he did not see how Chief Metheny’s

testimony was germane.

Additionally, he testified that he did not tell anyone in

his command that they could not help Appellant. Commander

Morton asserted that he had not done anything to convey the

impression to members of his command that their careers would be

affected in any manner if they did or did not testify for the

Appellant. He expressly denied that he tried to influence Chief

Metheny’s testimony against Appellant or that he told Chief

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Metheny that he must “to[e] the company line.” He then

explained, “Chief Metheny is one to really talk on. He is a

Seabee’s Seabee. He will do anything for any troop, anytime. I

know he can talk and talk. I said, ‘Stick to the facts, the

facts that you know.’ That’s all I told him.”

Commander Morton stated that he had no ill will toward the

Appellant. He denied any knowledge of any questionnaires that

were being passed around his command. Finally, he denied that

he did anything to influence the court-martial proceedings.

Commander Morton explained that he reconsidered his

decision not to permit Chief Metheny to testify when he got a

telephone call from the legalman chief, in the base staff judge

advocate’s office, informing him “that the defense counsel had

claimed some - some foul play on my part, that I was limiting

Chief Metheny’s ability to get there.” Commander Morton said

that he met with the chief and told him to “go down to Pensacola

and answer all questions that you’re asked.”

The contradictory testimony of the witnesses presented a

credibility issue for the military judge. His detailed findings

explain his reasons for believing the original defense counsel

and Lieutenant Weber and for not believing Chief Metheny and the

CA. 58 M.J. 778-84. The military judge found that, “the

command acted in a manner which would constitute unlawful

command influence” and dismissed the case with prejudice,

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stating, “The carcinoma that is undue command influence must be

cut out and radically disposed of.”

The judge reasoned that the CA improperly “controlled” a

prospective defense sentencing witness. This resulted in

changing the witness’s anticipated testimony that Appellant

should be retained into testimony that only supported the

command decision to court-martial Appellant. In fashioning a

remedy of dismissal with prejudice, the military judge stated

that “the evil here spreads far beyond the four corners of this

case . . . .”

In announcing his findings, the military judge stated:

The mandate of United States [v.] Biagase, 50 M[.]J[.]
143 [C.A.A.F. 1999] could not be more clear. Undue
and unlawful command influence is the carcinoma of the
military justice system, and when found, must be
surgically eradicated. And this is going to be what
we are about to see, the eradication of something that
has shocked the consci[ence] of this court.

. . . .

This court was amazed at the absence of knowledge that
the convening authority held with regard to issues
having to do with trials by court-martial. And the
court’s confidence in the ability of this officer to
convene another court is shaken to the very core.
That this officer would so lack-hazardly [sic] and in
such a sloppy manner dismiss the importance of a
federal court proceeding pertinent to one of his own
subordinates is no less appalling.

In the military judge’s findings of fact and conclusions of

law, following the initial remand by the lower court, he

reaffirmed his initial evaluation of the unlawful command

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influence and its impact on this case. He stated that “there

could not be a more crystalline example of unlawful command

influence.” The judge concluded that the “only remedy that

addressed the rabid form of unlawful command influence placed

before the [c]ourt was dismissal with prejudice.”

The CCA concluded, upon reviewing the additional findings

and conclusions that the military judge made, pursuant to its

direction, that the CA’s unlawful command influence only

affected the sentence hearing, and therefore that the military

judge had abused his discretion. The lower court ordered that

Appellant’s case be sent back to the military judge to “select

an appropriate remedy, short of dismissal of the charges,

commensurate with the degree and extent of the unlawful command

influence.” 58 M.J. at 788.

Appellant then petitioned this Court for review of the

lower court decision and that petition was granted. Appellant

asserts that, regarding Issue I, the military judge acted within

the limits of his discretion. Regarding Issue II, Appellant

contends the lower court exceeded their permissible scope of

review by making additional findings of fact. The Government

argues that the military judge abused his discretion in

dismissing the charges with prejudice and that the lower court

did not engage in impermissible fact-finding but instead made

logical inferences and conclusions.

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II. DISCUSSION

A. The Factual Basis for the Decision

A preliminary issue before this Court is determining the

decisional facts in this case. This requires little discussion

as the law controlling this issue is clear and unequivocal.

Article 62(b), UCMJ, 10 U.S.C. § 862(b) (2000) states that the

lower court in ruling on a government appeal “may act only with

respect to matters of law, notwithstanding section 866(c) of

this title (article 66(c)).” See Rule for Courts-Martial

908(c)(2). This Court has stated:

When a court is limited to reviewing matters of law, the
question is not whether a reviewing court might disagree
with the trial court's findings, but whether those findings
are "fairly supported by the record." Marshall v.
Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850, 74
L.Ed.2d 646 (1983), quoting 28 U.S.C. § 2254(d)(8). "[T]o
give due deference to the trial bench," a determination of
fact "should not be disturbed unless it is unsupported by
the evidence of record or was clearly erroneous." United
States v. Middleton, 10 M.J. 123, 133 (C.M.A. 1981).

United States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985).

On matters of fact with respect to this Government appeal

under Article 62, UCMJ, both this Court and the lower court are

in the same position--bound by the military judge's factual

determinations unless they are unsupported by the record or

clearly erroneous. Neither court has authority to find facts in

addition to those found by the military judge. While the lower

court did comment and even expressed some disagreement with some

of the findings of the trial judge, the lower court did not find

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any factual finding of the military judge clearly erroneous.

Moreover, we conclude that each of the findings of fact of the

military judge are supported by evidence of record and proceed

to decide this case relying entirely on the findings of fact

made by the trial judge. In light of these matters and our

disposition of Granted Issue I, we need not specifically

determine whether the lower court found additional facts as

suggested by Issue II.

B. The Military Judge’s Remedy for
the Unlawful Command Influence

Unlawful command influence is prohibited under Article

37(a), UCMJ, 10 U.S.C. § 837(a) (2000), which states,

No authority convening a general, special, or summary
court-martial, nor any other commanding officer, may
censure, reprimand, or admonish the court or any
member, military judge, or counsel thereof, with
respect to the findings or sentence adjudged by the
court, or with respect to any other exercises of its
or his functions in the conduct of the proceedings.
No person subject to this chapter may attempt to
coerce or, by any unauthorized means, 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. . . .

The importance of this prohibition is reflected in our

observation, that “a prime motivation for establishing a

civilian Court of Military Appeals was to erect a further

bulwark against impermissible command influence.” United States

v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986).

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We need not here revisit the “multitude of situations in

which superiors have unlawfully controlled the actions of

subordinate in the exercise of their duties under the UCMJ.”

United States v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994). See

generally United States v. Stombaugh, 40 M.J. 208, 211 (C.M.A.

1994)(detailing “many instances of unlawful command influence”

that this Court has condemned).

Addressing the undisputed unlawful command influence in

this case, it is important to note that we have repeatedly

condemned unlawful command influence directed against

prospective witnesses. See United States v. Gleason, 43 M.J.

69, 75 (C.A.A.F. 1995); United States v. Levite, 25 M.J. 334,

340 (C.M.A. 1987); Thomas, 22 M.J. at 393; United States v.

Rosser, 6 M.J. 267, 271-72 (C.M.A. 1979). In Thomas, we stated,

“The exercise of command influence tends to deprive

servicemembers of their constitutional rights. If directed

against prospective defense witnesses, it transgresses the

accused’s right to have access to favorable evidence.” 22 M.J.

at 393.

Biagase, sets forth the analytical framework for deciding

issues involving unlawful command influence. In Biagase, this

Court held:

[O]nce the issue of unlawful command influence is
raised, the Government must prove beyond a reasonable
doubt: (1) that the predicate facts do not exist; or
(2) that the facts do not constitute unlawful command

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influence; or (3) that the unlawful command influence
will not prejudice the proceedings or did not affect
the findings and sentence.

50 M.J. at 151.

In Biagase, we reaffirmed, what we first stated in United

States v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998), that the

military judge is the “‘last sentinel’ to protect the court-

martial from unlawful command influence.” Id. at 152. In both

these cases, we recited with approval the curative action by the

military judge to ensure that alleged command influence did not

taint the court-martial. These cases recognize this authority

and the duty of the military judge to protect the servicemember

from unlawful command influence. We recently reaffirmed this

point, stating, “This Court has long recognized that, once

unlawful command influence is raised, ‘we believe it incumbent

on the military judge to act in the spirit of the [UCMJ] by

avoiding even the appearance of evil in his courtroom and by

establishing the confidence of the general public in the

fairness of the court-martial proceedings.’”

United States v. Stoneman, 57 M.J. 35, 42 (C.A.A.F.

2002)(quoting Rosser, 6 M.J. at 271).

But these cases do not require that the military judge take

any specific action to purge the taint of unlawful command

influence. Simply stated, our prior cases have addressed only

what a military judge can do, not what the military judge must

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do, to cure (dissipate the taint of the unlawful command

influence) or to remedy the unlawful command influence if the

military judge determines it cannot be cured. This distinction

has an important impact as to the standard of review in the

analysis of a command influence issue.

Biagase and Rivers are illustrative of situations where the

military judge took corrective action and concluded it

successfully purged the taint of unlawful command influence

thereby permitting the trial to proceed. This Court reviewed

the military judge’s attempt to purge the taint de novo. See

Biagase, 50 M.J. at 151; Rivers, 49 M.J. 443. Our task on

appeal was also to determine beyond a reasonable doubt if the

military judge was successful in purging any residual taint from

the unlawful command influence. Biagase, 50 M.J. at 151.

Because command influence is pernicious and an anathema to the

fairness of military justice, our de novo review ensured that

the unlawful command influence had no prejudicial impact on the

court-martial.

Unlike both Biagase and Rivers, the present case does not

ask us to consider if the military judge was successful in

purging the taint from unlawful command influence and permitting

the trial to proceed. Here, the judge found unlawful command

influence tainted the proceedings. Neither the lower court nor

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the Government challenges the finding that unlawful command

influence tainted the proceedings.

But again, unlike both Biagase and Rivers, the military

judge here expressly concluded that “the only remedy that

addressed the rabid form of unlawful command influence placed

before the [c]ourt was dismissal with prejudice.” The military

judge dismissed the charges with prejudice to prevent the

unlawful command influence from prejudicing Appellant’s court-

martial. As the remedy of the military judge terminated the

proceedings, it is apparent that he was successful. So this

Court does not review de novo, as it did in both Biagase and

Rivers, whether the prejudice to Appellant’s court-martial

arising from the unlawful command influence persists after the

remedy.

Because the military judge here decided that the command

influence could not be cured and dismissed the charges with

prejudice, we, therefore, address a different issue than that

presented in Biagase and Rivers, where the trial proceeded after

remedial action by the military judge. We now consider whether

the military judge erred in fashioning the remedy for the

unlawful command influence that tainted the proceedings.

We will review the remedy ordered by the military judge in

this case for an abuse of discretion, the same standard applied

by the lower court and agreed to by both the parties before our

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Court. As we proceed in this review, we are mindful that as to

this sensitive issue, the judge’s evaluation of the demeanor of

the witnesses is most important. See Stoneman, 57 M.J. at 42-

43.

An abuse of discretion means that “when judicial action is

taken in a discretionary matter, such action cannot be set aside

by a reviewing court unless it has a definite and firm

conviction that the court below committed a clear error of

judgment in the conclusion it reached upon a weighing of the

relevant factors.” United States v. Houser, 36 M.J. 392, 397

(C.M.A. 1993)(citation omitted). We have also stated, “We will

reverse for an abuse of discretion if the military judge’s

findings of fact are clearly erroneous or if his decision is

influenced by an erroneous view of the law.” United States v.

Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995). Further, the abuse

of discretion standard of review recognizes that a judge has a

range of choices and will not be reversed so long as the

decision remains within that range. United States v. Wallace,

964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992).

We have long held that dismissal is a drastic remedy and

courts must look to see whether alternative remedies are

available. United States v. Cooper, 35 M.J. 417, 422 (C.M.A.

1992); See also United States v. Pinson, 56 M.J. 489, 493

(C.A.A.F. 2002) citing (United States v. Morrison, 449 U.S. 361,

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364 (1981)(any action taken “had to be ‘tailored to the injury

suffered’”)). When an error can be rendered harmless, dismissal

is not an appropriate remedy. United States v. Mechanik, 475

U.S. 66 (1986). This Court explained in United States v. Green,

4 M.J. 203, 204 (C.M.A. 1978), that dismissal of charges is

appropriate when an accused would be prejudiced or no useful

purpose would be served by continuing the proceedings. Id.

(citing United States v. Gray, 22 C.M.A., 443, 445, 47 C.M.R.

484, 486 (1973).

As dismissal of charges is permissible when necessary to

avoid prejudice against the accused and the findings of fact of

the military judge documented the prejudice to Appellant from

the egregious error in this case, we conclude the military judge

acted within his discretion to dismiss with prejudice the

charges against Appellant. While such remedy should only be

imposed when necessary, the military judge here acted within his

discretion after making findings of fact relating to the CA’s

actions to prevent witnesses from testifying on behalf of, and

cooperating with, Appellant. We agree with the military judge

when he said that, “[t]he mandate of [Biagase] could not be more

clear. Undue and unlawful command influence is the carcinoma of

the military justice system, and when found, must be surgically

eradicated.”

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The military judge precisely identified the extent and

negative impact of the unlawful command influence in his

findings of fact. As a result of the commanding officer’s order

not to testify on behalf of Appellant, the military judge found

that Appellant was deprived of the favorable testimony of Chief

Metheny. Testifying before the military judge, Chief Metheny

continuously displayed discomfort, failed to recall events that

occurred no more than 36 hours prior to testifying, and “left

the [c]ourt with the clear belief that [he] was terrified to

testify as he might have previously wished.” The military judge

found that, prior to testifying, Chief Metheny “alluded to the

negative ramifications that would stem from testifying,” and

“grasp[ed] his collar device and stat[ed] that he had attained

his present grade in a shorter period than should have been

expected.” Chief Metheny also “indicated that one gets ahead by

not bucking the system.” He noted that “he had to recognize

that the commanding officer authored his fitness report.” Chief

Metheny informed defense counsel “that he had received a phone

call from the commanding officer the evening prior to date of

trial” and that “if he testified favorably to the accused he

would not be promoted to senior Chief. He further informed

detailed defense counsel that if he did testify it would be in a

manner consistent with the commands [sic] wishes.”

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The military judge believed Chief Metheny to be testifying

falsely when he attempted to minimize the impact of the CA’s

order for him not to testify on behalf of Appellant. The

judge’s conclusion stemmed from the fact that Chief Metheny

originally indicated to defense counsel that he would testify on

behalf of Appellant. Specifically, Chief Metheny stated that he

thought Appellant was a “really nice guy” and should be

retained. Chief Metheny identified Chief Smith as another

individual from the command who also held the same beliefs as

himself. However, when Chief Metheny was actually called to

testify on behalf of Appellant, he denied volunteering to

testify on behalf of Appellant, stated he was not sure why he

was there other than perhaps to serve as a command

representative, that he did not recall being asked to testify

electronically, and that he did not discuss the prospect of

appearing as a witness with original defense counsel and

Lieutenant Weber.

The military judge rejected Chief Metheny’s testimony

finding, “His demeanor continued to betray dishonesty, both in

the ashen tone of his skin, which varied as his testimony

continued, and his constant movement in the witness box.”

Also, “his face was red and head bowed when answering the

question,” he appeared to be “acutely uncomfortable,” and “his

eyes were averted from the direction of the Court.” Chief

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Metheny appeared to the court as being under “considerable

duress.” He was a man desperate to please his commanding

officer. He impressed the court as a witness “who did not feel

free to express his true opinions or accurately recount what he

knew to be true.” The Chief, “under rather intense questioning

from the Court finally conceded that he had been told by the

commanding officer that he was not going to testify in the

case.” The military judge found that this concession ran “afoul

of the Chief’s testimony that he did not know that he was

desired as a witness.” He conceded to the court that “he did in

fact tell detailed defense counsel that it was unwise to buck

the system,” which caused the court to further question why he

testified that he did not believe he would be called as a

witness.

The military judge found Lieutenant Weber to be a credible

witness that corroborated the scope, degree, and impact of the

unlawful command influence on Chief Metheny. Ultimately, the

military judge concluded that “in order to determine that no

unlawful command influence had been exerted it would have to

defy logic, disbelieve two officers of the court and adopt the

testimony of Chief Metheny whose erratic, nervous and deceptive

deportment and questionable substantive contribution are

documented in [my] findings of fact.”

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The military judge further concluded that the Government

failed to prove that the unlawful command influence had no

impact on the proceedings. The military judge found that the

commanding officer so terrified Chief Metheny that he refused to

testify contrary to his commander’s orders. Likewise, the

commanding officer prohibited questionnaires from being

distributed and may have prohibited anyone else in the command

from testifying for Appellant. The military judge stated that

“[s]ubsequent to the intervention of the Commanding Officer, no

member of the command was going to testify for the accused . . .

.” Importantly, the military judge specifically found that the

Government failed to produce testimony of any alternate defense

witnesses from the command. Cf. Rivers, 49 M.J. at 440-43

(finding that remedial measures of the command and military

judge to insure availability of defense witnesses purged the

effects of unlawful command influence). In light of this “rabid

form of unlawful command influence[,]” the judge concluded that

“there was no way for the [c]ourt to be sure that the taint of

the commanding officer[’]s wrongful intervention had not spread

beyond its obvious impact on Chief Metheny . . . who was clearly

terrified that his career and family would be damaged if he

carried out his promise to testify on behalf of the accused.”

The military judge, therefore, “determined that dismissal with

prejudice was the only logical remedy available.”

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Rejecting alternate remedies, the judge reasoned that

dismissing without prejudice and allowing for a re-referral

would not eradicate the unlawful command influence because it

“would not have removed the pool of prospective witnesses from

the firm grasp of an interloping commanding officer who, as

Chief Metheny noted, writes the fitness reports of prospective

witnesses.” The military judge also rejected a “blanket order

whereby every witness proposed by the defense would have been

accredited with a positive opinion of the accused’s

rehabilitative potential for further naval service.” In

fashioning a remedy, the military judge rejected the Government

argument that Chief Metheny’s “lack of significant contact with

the accused somehow vitiates the unlawful command influence.”

Noting the “special significance” of the testimony of a Chief

petty officer, the judge rejected any suggestion that the

commanding officer alone could determine what testimony was

“germane” to the court-martial. Finally, the military judge

stated that “the court also weighed the absence of understanding

of the military justice system or his role as a CA on the part

of the commanding officer. Accordingly, having concluded that

[Appellant] could not be afforded witnesses untainted by the

chilling hand of the convening authority,” the military judge

determined that Appellant would not receive a fair trial and the

only available remedy was dismissal with prejudice.

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Furthermore, we note the fact that Appellant previously

negotiated a pretrial agreement does not in any way undermine

the military judge’s conclusion. Appellant’s negotiation of a

pretrial agreement does not mean that he is not entitled to a

fair trial, one where witnesses are permitted to testify on

behalf of and in support of Appellant. Appellant had not yet

entered his pleas and remained free to plead not guilty. We

view the possible future guilty plea of Appellant as irrelevant.

The military judge was correct in rejecting the commanding

officer’s view of the case that after the pretrial agreement was

signed the case was a “done deal.” The circumstances of

Appellant’s negotiated future guilty plea did not afford the

commanding officer license to violate the mandate of Article 37,

UCMJ, prohibiting unlawful command influence. Cf. Gleason, 43

M.J. at 75 (considering an offered and accepted plea of guilty

untainted by unlawful command influence).

In summary, both parties and the lower court agree that the

military judge correctly found that unlawful command influence

existed. The military judge’s findings of fact were not clearly

erroneous and support this conclusion. The military judge’s

conclusion of prejudice stemming from this unlawful impact in

this case is supported by the record. Because Appellant had not

yet entered pleas, the CA’s interference with potential

witnesses affected both Appellant’s ability to contest the

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charges and to present a sentencing case. It was within the

military judge’s discretion to determine that dismissal with

prejudice was the appropriate remedy in light of the egregious

conduct of the CA that prejudiced Appellant’s court-martial.

We hold that the military judge did not abuse his

discretion by dismissing the charges against Appellant. His

findings of fact were supported by the evidence and his decision

to dismiss with prejudice was within the range of remedies

available and not otherwise a clear error of judgment. Based on

this holding, we conclude that the lower court erred in ordering

the record to be returned to the military judge to select a

different remedy.

Decision

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed. The decision of the military

judge is reinstated.

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