IN THE CASE OF
UNITED STATES, Appellee
V.
Daniel D. DAVIS, Airman Basic
U.S. Air Force, Appellant
No. 02-0526
Crim. App. No. S30020
United States Court of Appeals for the Armed Forces
Argued December 10, 2002
Decided February 14, 2003
ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, AND BAKER, JJ., joined
Counsel
For Appellant: Captain L. Martin Powell (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea, and Captain Jennifer
K. Martwick (on brief); Major Jeffrey A. Vires.
For Appellee: Lieutenant Colonel Lance B. Sigmon (argued);
Lieutenant Colonel LeEllen Coacher (on brief).
Military Judge: George E. Pavlik
This opinion is subject to editorial correction before final publication.
United States v. Davis, No. 02-0526/AF
Judge ERDMANN delivered the opinion of the Court.
Appellant, Airman Basic (AB) Daniel D. Davis, United States
Air Force, was tried by special court-martial at Lackland Air
Force Base, Texas. Pursuant to his pleas, he was convicted of
unauthorized absence and one specification each of wrongful use
of cocaine and wrongful use of marijuana, violations of
Articles 86 and 112a, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 886, 912a (2002), respectively.
A court of officer members sentenced him to a bad-conduct
discharge and confinement for three months. The convening
authority approved the sentence as adjudged. On March 7, 2002,
the Air Force Court of Criminal Appeals affirmed the findings and
sentence in an unpublished opinion.
We granted review of the following issue:
WHETHER IT WAS ERROR FOR THE CONVENING
AUTHORITY TO PERFORM THE POST-TRIAL
REVIEW OF APPELLANT’S CASE WHEN THE
CONVENING AUTHORITY MADE STATEMENTS THAT
DEMONSTRATED AN INELASTIC ATTITUDE
TOWARD CLEMENCY.
For the reasons set forth herein, we answer the granted
issue in the affirmative and return Appellant’s case for a new
action by a different convening authority.
Facts
Pursuant to a pretrial agreement with the convening
authority, Appellant providently pleaded guilty to using both
cocaine and marijuana and to being absent without authority
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from December 21, 2000 until he was apprehended on February, 16,
2001.
After trial, Appellant’s defense counsel submitted a
“memorandum for all reviewing authorities” entitled “Goode
Response and Clemency Petition – US v. Davis.”1 The memorandum
indicated that Appellant had petitioned the convening authority
for clemency and stated the following:
We object to MajGen [F], 37th TRW/CC,
being the convening authority for
purposes of taking action on the
sentence in this case. During the early
part of this year, MajGen [F] gave
several briefings at Lackland Air Force
Base, Texas where he discussed illicit
drug use by military members as being on
the rise. During the briefings, MajGen
[F] also publicly commented that people
caught using illegal drugs would be
prosecuted to the fullest extent, and if
they were convicted, they should not
come crying to him about their
situations or their families[’], or
words to that effect (Affidavit
Attached). MajGen [F]’s comments
seriously question his ability to act
neutrally and impartially when
determining whether AB Davis should
receive any clemency on his case as AB
Davis was indeed prosecuted and
convicted of illegal drug use.
A convening authority should be
able to objectively and impartially
weigh all the evidence in the Record of
Trial and clemency matters submitted by
the accused (US v. Newman, 14 MJ 474,
CMA 1983). Based on his comments,
specifically those regarding ‘don’t come
crying to me about your situation or
your families[’],’ we do not believe
MajGen [F] can be fair and impartial in
this capacity. In our opinion, these
comments illustrate MajGen [F]’s
unwillingness to impartially listen to
clemency petitions by those convicted of
illegal drug use.
1
United States v. Goode, 1 M.J. 3 (C.M.A. 1975).
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United States v. Davis, No. 02-0526/AF
Appellant’s defense counsel executed the affidavit referenced in
the foregoing. In the affidavit defense counsel indicated that
several individuals had told him about briefings in which Major
General (MG) F stated that “‘individuals under his command who
were caught using illegal drugs would be prosecuted to the
fullest extent, and if they were convicted, they should not come
crying to him about their situation or their families[’],’ or
words to that effect.”
An addendum to the staff judge advocate’s post-trial
recommendation, dated September 14, 2001, was silent about the
convening authority’s alleged comments. Despite Appellant’s
objections, MG F took action approving Appellant’s sentence as
adjudged.
Background
A convening authority is vested with substantial discretion
when he or she takes action on the sentence of a court-martial.
Article 60(c)(2) - (3), UCMJ, 10 U.S.C. § 860(c)(2) - (3) (2002);
Rule for Courts-Martial 1107 [hereinafter R.C.M.]. As a matter
of “command prerogative” a convening authority “in his sole
discretion, may approve, disapprove, commute, or suspend the
sentence in whole or in part.” Article 60(c)(1) - (2). The
convening authority’s broad authority is a significant reason
that we have noted that the convening authority is an accused’s
best hope for sentence relief. United States v. Lee, 50 M.J.
296, 297 (C.A.A.F. 1999); United States v. Howard, 23 C.M.A. 187,
192, 48 C.M.R. 939, 944 (1974).
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Action on the sentence is not a legal review. Rather, a
convening authority considers numerous factors and reasons in
determining a sentence that is "warranted by the circumstances of
the offense and appropriate for the accused.” R.C.M. 1107(d)(2).
The convening authority must consider any matters submitted by
the accused pursuant to Article 60(b). Article 60(c)(2), UCMJ;
see also R.C.M. 1105, 1106(f), 1107(b)(3)(A)(iii).
In the performance of post-trial duties, a convening
authority acts in a “role . . . similar to that of a judicial
officer.” United States v. Fernandez, 24 M.J. 77, 78 (C.M.A.
1987)(citing United States v. Boatner, 20 C.M.A. 376, 43 C.M.R.
216 (1971)). The requirement for impartiality assures that the
convening authority gives full and fair consideration to matters
submitted by the accused and determines appropriate action on the
sentence. “As a matter of right, each accused is entitled to an
individualized, legally appropriate, and careful review of his
sentence by the convening authority.” Fernandez, 24 M.J. at 78.
This right is violated where a convening authority cannot or will
not approach post-trial responsibility with the requisite
impartiality. Under such circumstances, a convening authority
must be disqualified from taking action on a record of court-
martial. See Fernandez, 24 M.J. at 79; Howard, 23 C.M.A. at 192,
48 C.M.R. at 944.
Our decisions disqualifying convening authorities from
taking post-trial action have fallen into two categories. In the
first category, a convening authority will be disqualified if he
or she is an accuser, has a personal interest in the outcome of
the case, or has a personal bias toward the accused. See, e.g.,
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United States v. Davis, No. 02-0526/AF
United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999); United
States v. Crossley, 10 M.J. 376 (C.M.A. 1981); United States v.
Conn, 6 M.J. 351 (C.M.A. 1979); United States v. Jackson, 3 M.J.
153 (C.M.A. 1977); see also Article 1(9), UCMJ, 10 U.S.C. §
801(9)(2002). In the second category, we have found convening
authorities to be disqualified if they display an inelastic
attitude toward the performance of their post-trial responsibility.
See, e.g., Fernandez, 24 M.J. at 79; Howard, 23 C.M.A. at 192, 48
C.M.R. at 944. We review de novo claims that a convening
authority was disqualified from taking action on a court-martial
sentence. See Conn, 6 M.J. at 353.
Discussion
Appellant has not argued that MG F was an accuser or
possessed a personal, unofficial interest in Appellant’s case.
Rather, Appellant claims that the convening authority’s comments
“reflected his animosity toward drug users and his inelastic
attitude about the clemency process as a whole.” The Government
responds that “[w]hile Major General [F’s] statements were
strong, they do not demonstrate a fixed and inelastic attitude
toward dealing with clemency petitions.” The Government has not
disputed the fact that MG F made the comments attributed to him.
Thus, for purposes of this appeal, we will assume that MG F made
comments substantially as reported by trial defense counsel. We
proceed to review those comments to determine whether MG F
possessed an inflexible, disqualifying attitude toward his post-
trial responsibilities.
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It is not disqualifying for a convening authority to express
disdain for illegal drugs and their adverse effect upon good
order and discipline in the command. A commanding officer or
convening authority fulfilling his or her responsibility to
maintain good order and discipline in a military organization
need not appear indifferent to crime. Adopting a strong anti-
crime position, manifesting an awareness of criminal issues
within a command, and taking active steps to deter crime are
consonant with the oath to support the Constitution; they do not
per se disqualify a convening authority. See Fernandez, 24 M.J.
at 78-79; United States v. Harrison, 19 C.M.A. 179, 182, 41
C.M.R. 179, 182 (1970); United States v. Hurt, 9 C.M.A. 735, 761-
62, 27 C.M.R. 3, 44-45 (1958).
In Fernandez, the convening authority issued a policy letter
to all battalion commanders. That letter characterized illegal
drugs as a “threat to combat readiness” and reminded the
battalion “commanders that ‘detection and treatment of drug
abusers’ should ‘be a primary goal’.” The convening authority
directed commanders to “personally screen the names of all court
member nominees . . . to ensure that only the most mature
officers and NCOs would be detailed for court-martial duty.” The
policy letter stated that the “full weight of the military
justice system must be brought to bear against these criminals.”
The letter also told commanders to consult with legal advisors
before taking action. 24 M.J. at 79.
We found that the policy letter “reveal[ed the convening
authority’s] serious concern about preventing the illegal
distribution of drugs in the force under his command” and that
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“the letter taken as a whole indicate[d] a flexible mind
regarding the legally appropriate ways in which to deal with drug
dealers.” Id.
Although strong, the policy letter in Fernandez was
balanced, including references to treatment of drug abusers,
ensuring the “most mature” court members, and seeking legal
advice before disposing of offenses. We held that the record did
not demonstrate predisposition to take any particular post-trial
action and that the convening authority was not disqualified
under Article 60. Id.
In the instant case, MG F made direct reference to his post-
trial role, asserting that those convicted of using drugs “should
not come crying to him about their situations or their
families[’].” We believe that these words reflect an inflexible
attitude toward the proper fulfillment of post-trial
responsibilities in cases involving convictions for wrongful use
of controlled substances. Unlike the convening authority in
Fernandez, MG F’s comments lacked balance and transcended a
legitimate command concern for crime or unlawful drugs.
Regardless of the nature of the offense, a convicted
servicemember is entitled to individualized consideration of his
case post-trial. That individualized consideration must be by a
neutral convening authority capable of fulfilling his or her
statutory responsibilities. Statements reflecting an
unwillingness to consider each case fully and individually create
a perception that a convicted servicemember will be denied the
material right to individualized post-trial consideration and
action. Where a convening authority reveals that the door to a
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full and fair post-trial review process is closed, we have held
that the convening authority must be disqualified.
In Howard, the convening authority issued a letter
communicating his views to convicted drug dealers. In that
letter, he informed them that their pleas for clemency would be
answered in the following manner: “‘No, you are going to the
Disciplinary Barracks at Fort Leavenworth for the full term of
your sentence and your punitive discharge will stand.’ Drug
peddlers, is that clear?” 23 C.M.A. at 191, 48 C.M.R. at 943.
Our Court held that the convening authority was disqualified from
taking action on those cases because his statement demonstrated
an inelastic attitude toward their clemency requests. Id. at
192, 48 C.M.R. at 944.
In United States v. Wise, 6 C.M.A. 472, 20 C.M.R. 188
(1955), we found that a convening authority’s policy that “he
would not consider the retention in the military service of any
individual who had been sentenced to a punitive discharge,” to be
“contrary to the intent and spirit of the Uniform Code of
Military Justice and the provisions of the Manual[.]” Id. at
474, 476, 20 C.M.R. at 190, 192. In both cases, the convening
authority “set[] forth in unmistakable terms” an unwillingness to
apply required standards and give individualized consideration
during the post-trial review process. Howard, 23 C.M.A. 191, 48
C.M.R. at 943. See also United States v. Walker, 56 M.J. 617
(A.F. Ct. Crim. App. 2001).
The plain meaning of MG F’s words is equally as
“unmistakable.” He erected a barrier to clemency appeals by
convicted drug users who wished to have “their situation or
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families[’]” considered; he said, “Don’t come.” He revealed his
attitude toward the clemency process under such circumstances; he
considered pleas for sentence relief as “crying.” Finally, his
words reflected that the barrier and attitude related directly to
his post-trial role as a convening authority: “Don’t come crying
to me.” These words unmistakably reflect an inelastic attitude
and predisposition to approve certain adjudged sentences. This
attitude is the antithesis of the neutrality required of a
“commander’s prerogative that is taken in the interests of
justice, discipline, mission requirements, clemency, or other
appropriate reasons.” Id. at 618 (citations omitted).
The Government has called to our attention a court-martial
order reflecting that MG F provided relief in the form of
reducing forfeitures for another Airman convicted, pursuant to
his pleas, of using and distributing ecstasy. We need not decide
whether the convening authority’s action in a separate case would
be sufficient to dispel evidence of an inelastic attitude. The
bare order in that case does not provide information about the
facts and circumstances of that case, including the timing of the
convening authority’s action in relation to the command briefings
at issue here, nor are we privy to any circumstances surrounding
the clemency or plea bargaining process in that case. Therefore,
we are not persuaded that MG F in fact possessed the required
impartiality with regard to his post-trial responsibilities.
Decision.
The decision of the United States Air Force Court of
Criminal Appeals is reversed, and the action of the convening
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authority is set aside. The case is returned to the Judge
Advocate General of the Air Force for a new review and action
before a different convening authority.
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