United States v. Private E2 TREVON COLEY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
WALKER, EWING, ! and PARKER
Appellate Military Judges

UNITED STATES, Appellee
v.
Private E2 TREVON K. COLEY
United States Army, Appellant

ARMY 20220231

Headquarters, 21st Theater Sustainment Command
Charles L. Pritchard, Jr. and Lance R. Smith, Military Judges
Major Dane M. Rockow, Acting Staff Judge Advocate

For Appellant: Colonel Michael C. Friess, JA; Lieutenant Colonel Dale C.
McFeatters, JA; Jonathan F. Potter, Esquire; Major Rachel P. Gordienko, JA;
Captain Rachel M. Rose, JA (on brief); Colonel Philip M. Staten, JA; Jonathan F.
Potter, Esquire; Major Robert W. Rodriquez, JA; Captain Rachel M. Rose, JA (on
reply brief); Colonel Philip M. Staten, JA; Major Robert W. Rodriquez, JA; Captain
Rachel M. Rose, JA (on supplemental brief).

For Appellee: Colonel Christopher B. Burgess, JA; Lieutenant Colonel Jacqueline J.
DeGaine, JA; Lieutenant Colonel Pamela L. Jones, JA; Captain Lisa Limb, JA (on
brief). Colonel Christopher B. Burgess, JA; Lieutenant Colonel Jacqueline J.
DeGaine, JA; Major Timothy R. Emmons, JA; Captain Lisa Limb, JA (on
supplemental brief).

13 March 2024

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
PARKER, Judge:

Appellant raises five assignments of error, four of which warrant discussion
but no relief.? First, we find appellant was not prejudiced by the alleged

' Judge EWING decided this case while on active duty.

(continued .. .)
COLEY—ARMY 20220231

instructional error. Second, appellant has failed to meet the burden to establish
there was ineffective assistance of counsel. Third, appellant has failed to show
prejudice despite his argument that unlawful command influence resulted in the
improper manipulation of the criminal justice process in his trial. Last, appellant
has failed to show prejudice for the judicial reassignment of his case.

BACKGROUND

In March 2021, appellant left his barracks room in Kaiserslautern, Germany,
to meet up with Private (PV2) (i and another soldier in town. Al] three soldiers
drove their own vehicles back to the barracks and during the trip each were
speeding, weaving in and out of traffic, and switching lanes. At one point appellant
was in the lead and headed toward a dangerous intersection going approximately 107
miles per hour while the other two vehicles appear to have fallen behind. When
appellant entered the intersection, he collided with a vehicle driven by Specialist
(SPC) with Private First Class (PEC) fas her passenger. Specialist BM was
making a left-hand turn when appellant crashed into the driver’s side of SPC Rs

icle—going approximately sixty-eight miles per hour upon impact—killing SPC
a: causing grievous bodily injury to PFC As the two other vehicles
approached the intersection, they saw appellant’s vehicle smoking and damaged in
the road.

Appellant was largely unharmed. After the crash he got out of his car and
spoke to his two friends who had pulled over. Appellant asked PV2 Bio say she
was driving his vehicle because appellant had a suspended license, to which PV2 a
agreed. When emergency services arrived, appellant informed a police officer that
he had only been a passenger in the damaged vehicle. Private BEM formed the
police officer that she had been driving the damaged vehicle, and she was then taken
to the hospital for evaluation. At the time of the accident appellant did not have a
valid vehicle license or registration.

Appellant was tried before an officer panel at a general court-martial located
at Kaiserslautern, Germany. Pursuant to his pleas, appellant was convicted of two
offenses: conspiracy to obstruct justice, and a violation of a lawful general
regulation for wrongfully operating a motor vehicle without a valid license and
registration, in violation of Articles 81 and 92, Uniform Code of Military Justice, 10

(... continued)

? We have given full and fair consideration to appellant’s other assignment of error,
to include matters submitted personally by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they lack merit and warrant neither
additional discussion nor relief.
COLEY—ARMY 20220231

U.S.C. §§ 881 and 892 [UCMJ], respectively. Contrary to his pleas, appellant was
convicted of two offenses: involuntary manslaughter and aggravated assault, in
violation of Articles 119 and 128, UCMJ, respectively.? Appellant was sentenced by
the panel to a bad-conduct discharge, 8 years of confinement, reduction to E-1, and
total forfeitures of all pay and allowances.

On appeal, appellant alleges three assignments of error related to the trial, two
of which merit discussion. First, appellant argues there was an instructional error as
to an affirmative defense, and second, appellant argues his defense counsel were
ineffective in investigating and preparing for trial. Additionally, in a supplemental
brief after appellate discovery, appellant alleges two assignments of error related to
the military judge who presided over his trial. Both of appellant’s supplemental
arguments warrant discussion.

LAW AND DISCUSSION
A. Alleged Instructional Error

Appellant argues that the evidence at trial raised reasonable support for the
affirmative defense of contributory negligence instruction, and that the military
judge erred when he did not provide it to the panel members sua sponte. The
government argues that appellant waived this claim, but even so, that the military
judge properly instructed the panel by providing the instruction for involuntary
manslaughter by culpable negligence, which includes its own tailored contributory
negligence instruction. The government further argues that the involuntary
manslaughter by culpable negligence instruction combined with the proximate cause
instruction provided to the panel were substantially similar to the affirmative
defense of contributory negligence instruction appellant is now arguing was required
on appeal. Where an appellant preserves the claim at trial, an allegation of an
improper panel instruction is a question of law we review de novo. United States v.
Payne, 73 M.J. 22 (C.A.A.F. 2014). The question of whether an accused has waived
an issue is also reviewed de novo. United States v. King, 83 M.J. 115, 120
(C.A.A.F. 2023) (citation omitted).

1. Waiver

“(Forfeiture is the failure to make the timely assertion of a right... .”
United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020) (cleaned up). “Waiver can

occur either by operation of law... or by the intentional relinquishment or

3 The panel acquitted appellant of leaving the scene of an accident, and murder, in
violation of Articles 111 and 118, UCMJ.
COLEY—ARMY 20220231

abandonment of a known right.” United States v. Jones, 78 M.J. 37, 44 (C.A.A.F.
2018) (cleaned up). “If the appellant waived the objection, then we may not review
it at all.” Jd. “In making waiver determinations, we look to the record to see if the
statements signify that there was a ‘purposeful decision’ at play.” United States v.
Gutierrez, 64 M.J. 374, 377 (C.A.A.F. 2007) (quoting United States v. Smith, 50
M.J. 451, 456 (C.A.A.F. 1999)).

The evidence at trial focused both on appellant’s driving the night of the
accident, including the excessive high rate of speed in which he drove his vehicle
through an otherwise busy intersection at night, and whether SPC used
reasonable care in the operation of her vehicle. Specifically, that evidence centered
on sPC§bolling through a stop sign as she entered the intersection just prior to
the accident. Based on the evidence raised by the parties, the military judge
provided the panel with the proximate cause instruction for involuntary
manslaughter, and the affirmative defense instruction for an accident.* The military
judge did not provide the affirmative defense instruction for contributory
negligence, nor did the defense counsel request one.°

‘ The military judge also provided the following instruction for the involuntary
manslaughter by culpable negligence offense:

There is evidence in this case raising the issue of whether
the deceased failed to use reasonable care and caution for
her own safety. If the accused's culpable negligence was a
proximate cause of the death, the accused is not relieved
of criminal responsibility just because the negligence of
the deceased may also have contributed to her death. The
conduct of the deceased is, however, important on the
issue of whether the accused's culpable negligence, if any,
was a proximate cause of the death. Accordingly, a certain
act may be a proximate cause of death even if it is not the
only cause, as long as it is a direct or contributing cause
and plays an important role in causing the death. An act is
not a proximate cause of the death if some other force
independent of the accused's act intervened as a cause of
death.

* We pause to note that appellant does not allege ineffective assistance of counsel
for the failure to request such an instruction, but rather argues that it was the
military judge who had a sua sponte duty to provide such instruction.
COLEY—ARMY 20220231

Appellant had multiple opportunities to discuss the military judge’s
instructions. First, after both parties reviewed the military judge’s draft
instructions, defense counsel affirmatively stated they had no objections, and
specifically declined to request any additional instructions. Second, after the
military judge read the instructions to the panel, defense counsel again offered no
objection and again declined the military judge’s offer to defense on whether they
wanted any additional instructions provided to the panel. In total, the defense
counsel offered no objection to the instructions numerous times, and twice
responded “no” to the military judge’s question on whether appellant wanted any
additional instructions.

Rule for Courts-Martial [R.C.M.] 920(f) states, “[f]lailure to object to an
instruction or to omission of an instruction before the members close to deliberate
forfeits the objection.” However, our superior court clarified in United States v.
Davis that it is waiver and not forfeiture where an appellant affirmatively declines to
object to instructions and offers no instructions of his own. 79 M.J. 329, 330-32
(C.A.A.F 2020). This is how appellant finds himself positioned in this case; he
affirmatively declined to object to the military judge’s draft instructions, declined to
offer additional instructions, then declined to object after they were read to the
panel, and then again affirmatively declined to provide any additional instructions of
his own. In Davis, our higher court found that appellant, “[h]aving directly
bypassed an offered opportunity to challenge and perhaps modify the instructions,
[has] waived any right to object to them on appeal.” Jd. at 331 (quoting United
States v. Wall, 349 F.3d 18, 24 (1st Cir. 2003)).

We additionally highlight that in considering the recent changes to our review
authority under Article 66, UCMJ, this court “may affirm only such findings of
guilty as the Court finds correct in law, and in fact” in appellant’s case.° UCMJ art.
66(d)(1)(A), 10 U.S.C. § 866 (2018 & Supp. IV 2023). This is a departure from our
previous mandate to “affirm only such findings of guilty ... as the Court finds
correct in law and fact and determines, on the basis of the entire record, should be
approved.” UCMSJ art. 66, 10 U.S.C. § 66 (2018). Given this change, the court can
no longer pierce waived claims, because “[a] valid waiver extinguishes the claim of
legal error.” United States v. Ahern, 76 M.J. 194, 197-98 (C.A.A.F. 2017). “As such,
a case becomes ‘correct in law’ for purposes of Article 66 review when a valid
waiver applies to what would otherwise be prejudicial error.” United States v.
Conley, 78 M.J. 747, 749 (Army Ct. Crim. App. 2019)

° Further changes to Article 66 require an accused to make a “specific showing of a
deficiency in proof” before this court can conduct a factual sufficiency review.
UCM] art. 66(d)(1)(B)(i), 10 U.S.C. § 866 (2018 & Supp. IV 2023).
COLEY—ARMY 20220231

While we agree with the government that appellant could have waived this
issue if it involved solely an affirmative declination to object to the military judge’s
instructions at trial, we find this case distinguishable from the instructional error
waived in Davis, 79 M.J. 329, because it involves an affirmative defense
instruction.’ Stated another way, the Davis court was not presented with appellant’s
current argument that this is not an issue of waiver, but rather an issue of whether
the military judge failed in his sua sponte duty to provide the affirmative defense
instruction to the panel, despite defense counsel’s lack of objections or request for
such an instruction. As such, we reject the government’s assertion that this issue is
waived.

2. Sua Sponte Duty for Affirmative Defense Instructions

“A military judge has a sua sponte duty to give certain instructions when
reasonably raised by the evidence, even though the instructions are not requested by
the parties.” Gutierrez, 64 M.J. at 376 (citing United States v. McDonald, 57 M.J.
18, 20 (C.A.A.F. 2002)). “This Court reviews the adequacy of a military judge’s
instruction de novo.” United States v. Davis, 73 M.J. 268, 271 (C.A.A.F. 2014)
(citing United States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006)). Military
judges are duty bound to give available defense instructions if raised by the
evidence. Davis, 73 M.J. at 272 (citations omitted). Instructional errors that raise
constitutional implications are tested for prejudice under the standard of harmless
beyond a reasonable doubt. /d. at 271 (citation omitted). “The inquiry for
determining whether constitutional error is harmless beyond a reasonable doubt is

T See United States v. Davis, 76 M.J. 224, 226 (C.A.A.F. 2017) (“Because appellant
failed to object to the omission of a required instruction on a special defense, we
review the military judge’s instructions for plain error.”).

8 We also distinguish this case from Gutierrez, 64 M.J. 374, 375-78, where our
superior court reversed the Army Court of Criminal Appeal’s finding that the
military judge had erred in not giving an affirmative defense instruction sua sponte
that he was duty-bound to give because appellant had not affirmatively waived the
issue at trial. The CAAF disagreed with ACCA’s analysis of waiver, finding that
defense counsel had affirmatively waived the instructional issue at trial through his
actions. In that case, the military judge raised the defense of mistake of fact
instruction and specifically asked counsel if he was requesting one, which counsel
affirmatively declined by stating “I simply do not want to request one for battery.”
Id. at 377. Gutierrez is factually distinct from this case, where neither the judge nor
defense counsel proposed the affirmative defense instruction that was raised by the
evidence.
COLEY—ARMY 20220231

whether, beyond a reasonable doubt, the error did not contribute to the defendant’s
conviction or sentence.” Jd. al 273 (cleaned up).

On this issue, we assume without deciding, that the military judge should have
provided the affirmative defense instruction of contributory negligence, sua sponte.
Assuming without deciding error, we turn to whether appellant was prejudiced by
the alleged instructional error. We find that appellant was not prejudiced because
the failure to provide the affirmative defense instruction sua sponte did not
contribute to appellant’s conviction.

While the military judge provided the instructions as described above,
appellant avers that the absence of the affirmative defense of contributory
negligence instruction, with its “looms so large” language specifically, prevented the
panel from considering SPC [fs driving conduct compared to appellant’s.°
Appellant argues that the absence of this language meant the panel was not guided to
consider whether the government met their burden of proving that appellant’s
misconduct exceeded that of SPC - Appellant alleges this was prejudicial and
denied him of a properly instructed panel and a fair trial. We disagree with
appellant. The evidence supporting appellant’s guilt was overwhelming. Even
assuming all appellant’s arguments about SPC s driving were true, it does not
change that any assumed fault by SPC was miniscule in comparison to
appellant’s driving 107 miles per hour into an intersection with obstructed lighting
and visibility. We have no doubt that the panel members would have found
appellant guilty even with the additional “looms so large” language from an
additional instruction. We find based on the facts of appellant’s case he suffered no
prejudice from the assumed instructional error.

B. Ineffective Assistance of Counsel

Appellant alleges that his trial defense counsel were ineffective by failing to
properly investigate appellant’s case by: (1) not interviewing the medical
professionals from the accident scene, and (2) failing to interview Mr. [and
present his opinion that spc not appellant, was at fault for the accident.
Accordingly, appellant asks this court to reverse his convictions for involuntary
manslaughter and aggravated assault. As a result of the ineffective assistance of
counsel assignment of error, affidavits were submitted to this court by appellant’s

» See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, para.
5-19, note 7 (29 Feb. 2020).
COLEY—ARMY 20220231

trial defense counsel, Mr. fig ana Captain a We disagree with appellant’s
assertions and find appellant’s trial defense counsel were not ineffective. !°

Allegations of ineffective assistance of counsel are reviewed de novo. United
States v. Cueto, 82 M.J. 323, 327 (C.A.A.F. 2022) (citing United States v. Gooch, 69
M.J. 353, 362 (C.A.A.F. 2011)) (citation omitted). “To prevail on an ineffective
assistance claim, the appellant bears the burden of proving that the performance of
defense counsel was deficient and that the appellant was prejudiced by the error.”
United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (citing Strickland v.
Washington, 466 U.S. 668, 698 (1984)). “With respect to Strickland’s first prong,
courts ‘must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.’” United States v. Datavs, 71 M.J.
420, 424 (C.A.A.F. 2012) (quoting Strickland, 466 U.S. at 689). “As to the second
prong, a challenger must demonstrate ‘a reasonable probability that, but for
counsel’s [deficient performance] the result of the proceeding would have been
different.’” Jd. (quoting Strickland, 466 U.S. at 694) (alteration in original). “It is
not enough to show that the errors had some conceivable effect on the outcome...
.” Id. (cleaned up). Appellant has made no such showing here.

Appellant first asserts his defense counsel were deficient in their performance
by not interviewing the medical professionals who treated SPC Ml and SPC Jat
the scene of the accident. In support, appellant highlights that his defense team
attacked the government’s attempts to prove that appellant caused the accident, and
spc Hs death. The defense team did so, in part, by suggesting that negligent
medical care was provided to sPCHvia an improper administration of ketamine,
which was a contributing factor to her death. Appellant asserts his defense team was
ineffective because even though this was their argument at trial, they failed to
conduct a proper pretrial investigation and interview the medical professionals on
the scene.

The affidavits provided by defense counsel provide insight on the trial
a: strategy regarding the medical professionals on the scene.

preparation pla
Captain (CPT) states that he did not interview emergency personnel who treated
SPC Hor SP but did interview a different German emergency medical

professional on the scene and recalled that this witness had no independent memory

'0 Having considered the principles set forth in United States v. Ginn, 47 M.J. 236
(C.A.A.F. 1997), we find no competing information contained within the affidavits
submitted by defense counsel and there is no affidavit submitted by appellant.
Additionally, the record of trial and affidavits provide us all necessary information
to decide appellant’s allegations. Therefore, we are able to resolve appellant’s claim
of ineffective assistance of counsel without ordering a post-trial evidentiary hearing.
See Ginn, 47 M.J. at 248.
COLEY—ARMY 20220231

of her actions after the accident and would only be able to rely on the medical report
she previously prepared. Mr. s affidavit states he interviewed the doctor that
performed SPC s autopsy but not the treating paramedics on the scene that
night. He reasoned that although the defense intended to discuss the issue of
ketamine to raise reasonable doubt as to the cause of death, it was a “grasp at
straws” theory given that the evidence supported the accident itself caused the death
and injuries. Both the government and defense reconstruction experts relied on the
“hardness of impact” of the accident, which was in addition to the medical examiner
stating all injuries were caused by the accident, and the defense medical consultant
concurring. Additionally, CPT states that the defense strategy focused on who
was at fault for the accident, rather on the cause of injury and death. From the
witnesses whom defense did interview, and with the help of experts they consulted,
the defense team determined this strategy would have the highest chance of success
because it was clear that SPBfand SPC s injuries were caused by the
accident. Although the autopsy detected ketamine in SPC i ; blood, and defense
used this to inject some reasonable doubt into the cause of SPC s death, it was
not the defense’s main theory. In fact, based on the information the defense
received from its experts and the interviews of other personnel, they determined the
ketamine was likely administered properly and did not cause SPC s death. As to
SPC it was also clear from the medical documentation the impact of the accident
was the cause of her injuries. As explained by Mr. mm a list of paramedics
testifying that they provided appropriate medical care to SPC and SPC BB would
not be helpful to the defense. This was especially the case because the defense’s
own consultant, as well as the medical examiner, indicated there was no evidence of
improper medical care.

Defense counsel both admit they did not interview the medical personnel who
treated SPC Wand PFC at the scene. They also provide their reasonable
strategic reasons for not doing so, as described above. Appellant bears the burden of
proving deficient performance by counsel. The bare assertion that the failure to
interview medical personnel was ineffective because it resulted in a lack of evidence
to support an improper administration of ketamine, when no such evidence appeared
to exist, fails to meet that burden.

Second, appellant asserts his defense team were ineffective because they did
not interview Mr. a German accident investigator, who arrived on the scene
following the collision. Both defense counsel affidavits make it clear they did in
fact interview Mr. i although it is important to note that Mr. BB dia not possess
the same accident reconstruction expert qualifications as the government and defense
experts. With both defense counsel affidavits confirming Mr. was interviewed
prior to trial, and no evidence to the contrary, we find appellant failed in_his burden
of proving deficient performance by counsel by failing to interview Mr. in
preparation for trial.
COLEY—ARMY 20220231

Relatedly, appellant asserts his defense counsel were ineffective for failing to
present Mr. a. testimony or written report of the accident at trial. Mr.

relying on the German Police Accident Report, found that SPC BB rotica into the
intersection without stopping and that appellant was speeding more than the posted
speed limit, findings that were consistent with conclusions from both the
government and defense accident reconstruction experts. As explained in defense
counsel’s affidavits, both the government and defense experts concluded Mr.

made errors in his report, and that he was not qualified to render an opinion as an
expert. Due to credibility concerns, even the defense’s own expert relied on his own
report and not Mr. a: despite having reached a few similar conclusions. Thus, the
defense team concluded there was no strategic benefit in calling Mr. is a witness
only to have his credibility attacked and detract from the defense’s case. Instead,
the defense opted to elicit important facts contained in Mr. fs report from other
witnesses in lieu of introduci report they knew not to be entirely accurate, and
even noted their fear that vr could potentially even confirm the information the
government expert put forth in his testimony. With both defense counsel affidavits
addressing the strategic reasons for not introducing Mr. i: testimony or accident
report, we find counsel were within their wide range of reasonable professional
assistance and appellant has failed to meet his burden of proving deficient
performance.

Based on our review of the record, and under the objective standard of
reasonableness, we find no deficiency in defense counsels’ performance. While we
find no deficient performance and no error by counsel, we add that appellant has
also failed to demonstrate prejudice and a reasonable probability that but for the
alleged deficient performance there would have been a different result. Rather,
appellant only offers speculation there would have been a different outcome.

C. Unlawful Command Influence
Turning to appellant’s supplemental assignments of error, he alleges that
unlawful command influence resulted in the improper manipulation of the criminal
justice process in his case in violation of Article 37, UCMJ.
Judge Pritchard presided over appellant’s arraignment in January 2022. Also

in January 2022, in an unrelated trial, Judge Pritchard ruled that an accused had a
constitutional right to a unanimous verdict, a ruling that prompted the government to

10
COLEY—ARMY 20220231

file a writ for extraordinary relief.!' The next month, in February 2022, appellant
filed a motion for unanimous verdict. Prior to this court’s opinion in United States
v. Pritchard, 82 M.J. 686 (Army Ct. Crim. App. 2022)", which granted the
government’s writ, Judge Pritchard reassigned? himself from appellant’s contested
panel case. In approximately August 2022, the newly detailed Air Force military
judge, Judge Smith, denied appellant’s unanimous verdict motion. There were
multiple appellate discovery motions filed by appellant regarding the reassigning of
appellant’s case from Judge Pritchard to Judge Smith.

In response to a motion by appellant for appellate discovery regarding the
reassignment of appellant’s case, this court ordered affidavits from Judge Pritchard
and Judge Smith relating to the circumstances surrounding the reassignment. In
Judge Pritchard’s affidavit, he explained that after the extraordinary writ was filed
on the unanimous verdict issue in January 2022, he intended not to rule on
unanimous verdict motions until this court issued an opinion and until then, he
would only remain detailed to bench trials. He also explained that in March 2022,
he requested assistance in finding a trial judge for appellant’s contested panel case,
and in coordination with the U.S. Air Force Chief Circuit Military Judge for Europe,
was informed that Judge Smith was available. Judge Smith was then officially
detailed in April 2022 via the Memorandum of Agreement (MOA) between the Air
Force and the Army for the cross-service detailing of military judges.

In Judge Smith’s affidavit, he described the inquiry he received in April 2022
from his supervisor regarding his availability to take an Army case; how he was
subsequently provided notice of his detailing to appellant’s case per the MOA; and
described his subsequent email notification of his detailing to the parties in
appellant’s case. Judge Smith also explained that in addition to emails with Judge
Pritchard regarding the “handing off’ of appellant’s case, the two met in person to
discuss the handoff, along with Judge Smith’s supervisor, the Air Force Chief
Circuit Military Judge — European Circuit. During this meeting, Judge Pritchard
stated something to the effect of “you will deny the motion and move on,” in
reference to the topic of the then-pending unanimous verdict motion appellant had

'! Our superior court found there was no right to a unanimous guilty verdict for
courts-martial defendants in United States v. Anderson, 83 M.J. 291 (C.A.A.F.
2023).

'2 This case was decided on 9 June 2022.
13 We use the phrase “reassigned” as appellant does in his initial brief. We note that

in his reply brief appellant argued it was a disqualification and during oral argument
he argued it was a recusal.

11
COLEY—ARMY 20220231

filed. Judge Smith stated he did not construe this comment to be an order but
instead a statement of Judge Pritchard’s awareness that he was the only military
judge who had granted such a motion and as such, assumed Judge Smith would deny
it. Judge Smith stated he did not feel influenced by Judge Pritchard in any way.
Additionally, Judge Smith described how Judge Pritchard emailed him after this
meeting stating in effect, that Judge Smith “should not take [Judge Pritchard’s]
comment as an attempt to influence [Judge Smith] in any way.” Judge Smith stated
that neither Judge Pritchard’s ruling on the motion, nor his statement during the
meeting, had any influence on appellant’s unanimous verdict motion ruling, which
he eventually denied. Judge Smith stated he ruled to deny the motion based on his
understanding of the law, as he had done in several other cases, both before and after
his ruling in appellant’s case.

We review allegations of unlawful command influence de novo. United States
v. Bergdahl, 80 M.J. 230, 234 (C.A.A.F. 2020) (citations omitted).). Appellant
argues both actual unlawful command influence and the appearance of unlawful
command influence. “To make a prima facie case of apparent unlawful command
influence, an accused bears the initial burden of presenting ‘some evidence’ that
unlawful command influence occurred.” Jd. (quoting United States v. Boyce, 76 M.J.
242, 249 (C.A.A.F. 2017)) (citation omitted). Actual unlawful command influence
requires a showing of “(1) facts, which if true, constitute unlawful command
influence; (2) unfairness in the court-martial proceedings (i.e., prejudice to the
accused); and (3) that the unlawful influence caused that unfairness.” Boyce, 76 M.J.
at 248.

As to actual unlawful command influence, appellant alleges that Judge
Pritchard’s imperative statement to Judge Smith, “you will deny the motion and
move on” was Judge Pritchard exerting improper influence on the outcome of
appellant’s trial. Appellant alleges this was improper influence because Judge
Pritchard knew if the motion was not denied it would create a backlog of cases in
that circuit, hence his direction to Judge Smith to deny the motion. Appellant also
argues this statement raises concerns about Judge Smith’s impartiality, especially
concerning the presence of his supervisor at the meeting, and that Judge Pritchard’s
email to Judge Smith did not alleviate the intolerable strain on the perception of the
fairness of appellant’s trial.

To prevail on a claim of actual command influence, appellant must first show
some evidence of unlawful command influence. If appellant meets this initial
burden, the government must then rebut the allegations and show the facts as alleged
are not true, that they do not constitute unlawful command influence, or that the
unlawful command influence did not affect the findings or sentence. United States
v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013). Appellant also alleges apparent
unlawful command influence. Appellant adds that an objective observer would
harbor significant doubts regarding the propriety of Judge Pritchard orchestrating a

12
COLEY—ARMY 20220231

closed-door meeting to ensure Judge Smith denied appellant’s motion, and that many
doubts remain regarding the meeting and discussion that ensued. He argues that
appellant was prejudiced because he had a right to a trial that objectively is seen to
be fair.!

We find that appellant has failed to meet his burden to show prejudice, under
both actual and apparent unlawful command influence arguments. Appellant argues
that he has established prejudice because he was entitled to both a trial that was fair
and that was objectively seen to be fair. Specifically, appellant’s unanimous verdict
motion was denied and at the time Judge Pritchard removed himself from contested
panel cases, higher courts had not yet ruled on this issue, so Judge Pritchard
manipulated the process to ensure appellant’s motion was denied.

Appellant being denied his unanimous verdict motion does not amount to
prejudice to appellant, as appellant was not entitled to a unanimous verdict. Even
assuming arguendo Judge Smith denied the motion because Judge Pritchard directed
him to, appellant was not entitled to the granting of the motion. It is true that Judge
Smith denied appellant’s unanimous verdict motion, but that was a ruling that was
correct in law, so it does not follow that appellant suffered prejudice from this
proper ruling. We also note that it seems to follow that even if Judge Pritchard had
granted the motion it would have been clarified on appeal that appellant was entitled
to no such unanimous verdict right. In other words, appellant’s motion for
unanimous verdict would have been ultimately denied with either Judge Smith or
Judge Pritchard presiding, in different ways, and irrespective of the comment “you
will deny the motion and move on.” It is not obvious to this court what actual
prejudice appellant suffered as he was not entitled to this substantial right. See
UCM art. 37(c), 10 U.S.C § 837 (2018 & Supp. I 2020). Thus, and relatedly, we
turn to appellant’s last assignment of error.

D. Judicial Reassignment of Appellant’s Case

4 Congress amended Article 37 to include a provision that expressly requires that
“(njo finding or sentence of a court martial may be held incorrect on the ground of a
violation of this section unless the violation materially prejudices the substantial
rights of the accused.” UCMSJ art. 37(c), 10 U.S.C. § 837 (2018 & Supp. I 2020)
(emphasis added). The change would seem to vitiate the current apparent unlawful
command influence “intolerable strain” and “disinterested observer” jurisprudence.
Boyce, 76 M.J. at 248 (cleaned up). Although appellant argues he was prejudiced by
not receiving a trial objectively seen to be fair, we again highlight that appellant has
not shown that he suffered any individual prejudice as required by the new Article
37.

13
COLEY—ARMY 20220231

Appellant argues that the reassignment of his case to Judge Smith was
reversible error for three reasons: (1) it denied appellant due process because it was
an impermissible attempt to influence the outcome of the proceedings, (2) it resulted
in the likely bias of Judge Smith, and (3) the reassignment prejudiced appellant.

1. Constitutional Due Process Right to an Impartial Judge

A military judge has a “duty to sit on a case when not disqualified.” United
States v. Witt, 75 M.J. 380, 383 (C.A.A.F. 2016) (citing Laird v. Tatum, 409 US.
824, 837 (1972)). Rule for Courts-Martial 902 states a military judge may be
disqualified from a case in general if: (1) “impartiality might reasonably be
questioned” or (2) under specific grounds, which includes actual bias.!° R.C.M.
902(a), (b).

An accused has a “constitutional right to an unbiased and impartial judge”
and a “military due process right to a judge who appears fair and impartial.” United
States v. Cooper, 51 M.J. 247, 249-50 (C.A.A.F. 1999) (citing Tumey v. Ohio, 273
U.S. 510, 523-35 (1927); United States v. Ramos, 42 M.J. 392, 396 (C.A.A.F. 1995);
United States v. Reynolds, 24 M.J. 261, 264 (C.M.A. 1987)) (internal quotation
marks omitted).

Appellant asserts Judge Pritchard displayed judicial bias when he sought to
influence the outcome of the proceedings by removing himself so the case would be
reassigned to another military judge that he knew would deny a motion for
unanimous verdict.!® At trial, appellant did not object to the military judge
reassignment despite having multiple opportunities to do so, to include when he was
first notified by Judge Pritchard he would be replaced as the judge and again when
Judge Smith asked on the record if any party wanted to challenge or question him.
We therefore find appellant forfeited the issue of whether the reassignment violated
his constitutional due process right to an impartial judge at trial.

15 See R.C.M. 902(b) for a complete list of “specific grounds” disqualifying a
military judge from a particular case.

'6 We note that the reassignment from Judge Pritchard to Judge Smith occurred prior
to assembly of the court. Additionally, we note that R.C.M. 505(e)(1) states that
prior to assembly “the military judge .. . may be changed by an authority competent
to detail the military judge... , without cause shown on the record.” This same rule
states that even a change in a military judge after assembly may be permissible with
good cause shown. R.C.M. 505(e)(2). “Good cause” includes “military exigency,
and other extraordinary circumstances which render the... military judge...
unable to proceed with the court-martial within a reasonable time.” R.C.M. 505(f).

14
COLEY—ARMY 20220231

This court reviews forfeited constitutional issues concerning judicial
impartiality for plain error. United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F.
2011). “Plain error occurs when (1) there is error, (2) the error is plain or obvious,
and (3) the error results in material prejudice.” Jd. (citing United States v. Maynard,
66 M.J. 242, 244 (C.A.A.F. 2008)). “[W]here a forfeited constitutional error was
clear or obvious, ‘material prejudice’ is assessed using the ‘harmless beyond a
reasonable doubt’ standard set out in Chapman v. California, 386 U.S. 18, 87S. Ct.
824, 17 L. Ed. 2d 705 (1967).” United States v. Tovarchavez, 78 M.J. 458, 460
(C.A.A.F. 2019) (citation omitted). “That standard is met where a court is confident
that there was no reasonable possibility that the error might have contributed to the
conviction.” Jd. (citing Chapman, 386 U.S. at 24).

2. Prejudice and Reversal Under Liljeberg

Judge Pritchard was present for duty and not otherwise disqualified to hear
appellant’s case. However, anticipating a motion for unanimous verdict, his likely
decision, and likely appellate stay, he declined to hear it. For purposes of this
assignment of error, we will assume without deciding that Judge Pritchard should
have remained on appellant’s case, and we focus our discussion instead on (1)
whether appellant’s substantial rights were materially prejudiced by the transferring
of his case from Judge Pritchard to Judge Smith and (2) whether the reassignment
warrants reversal under Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847
(1988). Under the Liljeberg test, “it is appropriate to consider the risk of injustice
to the parties in the particular case, the risk that the denial of relief will produce
injustice in other cases, and the risk of undermining the public's confidence in the
judicial process.” Martinez, 70 M.J. at 159 (cleaned up).

Appellant argues the reassignment prejudiced appellant and that the Liljeberg
factors warrant reversal of his convictions. See Martinez, 70 M.J. at 158 (adopting
the Liljeberg factors to determine whether a military judge’s conduct warrants
reversal, even if the court finds no prejudice). In citing Liljeberg, appellant urges
this court to enforce appellant’s rights so that future judges in other cases would
more carefully consider their reasons for reassignment. Appellant further argues
that appellant’s rights being sacrificed for judicial expediency presents a grave risk
of undermining the public’s confidence in our military justice system.!’ Given there

7 Rule for Courts-Martial 102(b) states “[t]hese rules shall be construed to secure
simplicity in procedure, fairness in administration, and the elimination of
unjustifiable expense and delay.” Additionally, the Preamble, paragraph 3 states
“(t]he purpose of military law is to promote justice, to assist in maintaining good
order and discipline in the armed forces, to promote efficiency and effectiveness in

(continued .. .)

15
COLEY—ARMY 20220231

is no right to a unanimous guilty verdict in courts-martial, we find only the second
and third Liljebery factors applicable in this case.

Similar to appellant’s prior assignment of error we begin with whether
appellant suffered prejudice from his case being transferred from Judge Pritchard to
Judge Smith. Whether Judge Pritchard or Judge Smith tried appellant’s case,
appellant was not entitled to a unanimous guilty verdict, so the transferring of the
case between judges does not trample a right of appellant that he did not possess.
Appellant cannot demonstrate prejudice through this reassignment, as appellant’s
constitutional due process right affords him an impartial judge, not a right to a
particular judge he perceives to be more likely to rule in his favor. As to the
appearance of bias somehow being the prejudice to appellant, it does not appear to
this court that by Judge Smith sitting on appellant’s case a reasonable person would
question his impartiality, or the impartiality of Judge Pritchard who did not sit on
the case. See United States v. Uribe, 80 M.J. 442, 446 (C.A.A.F. 2021) (“The test
for identifying an appearance of bias is whether a reasonable person knowing all the
circumstances would conclude that the military judge’s impartiality might
reasonably be questioned.”) (cleaned up). We pause to highlight that Judge Smith
provided a well cited decision on the unanimous verdict motion, did not appear to
commit any erroneous rulings or prejudicial errors at trial and appears to have fairly
presided over appellant’s trial with impartiality. There is no evidence to the
contrary. That said, appellant seems to end up in the same position regardless —
either judge sitting on appellant’s case would have eventually resulted in a
determination that appellant was not entitled to a unanimous verdict. Even if we
assume the reassignment was clear or obvious error, the resulting denial of
appellant’s unanimous verdict motion was harmless beyond a reasonable doubt
because it had no effect on appellant’s conviction. Appellant does not have a right
to a unanimous guilty verdict. Appellant cannot demonstrate plain error as he has
failed to show any material prejudice resulted from the judicial reassignment in his
case.

Finally, appellant has not shown how the reassignment of the military judge in
his case risks producing injustice in other cases, or undermining the public’s
confidence in the military judicial process when he was tried before a judge who was
thorough, fair, and impartial. We therefore find reversal pursuant to Liljeberg is not
warranted in this case.

(. .. continued)

the military establishment, and thereby strengthen the national security of the United
States.” Given these authorities, while judicial expediency does not trump an
accused’s rights, it is a consideration that may be balanced with those rights.

16
COLEY—ARMY 20220231

CONCLUSION

On consideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.

Senior Judge WALKER and Judge EWING concur.

FOR THE COURT:

JAMES W. HERRING, JR.
Clerk of Court

17